The newly empowered Democratic majority continues its push to dramatically increase oversight of both the executive branch and the private sector. Companies and private individuals will frequently (and at times without any form of notice) be forced to respond to unwelcome congressional attention that can present enterprise-wide legal, political, reputational, media, and business risks.
Witness the recent news that 81 companies and individuals received detailed document requests from the House Committee on the Judiciary as part of but one of many investigations.
A key (and correct) initial response to any congressional inquiry is to precisely identify the applicable legal rules.
Most writing on this subject focuses (rightly) on the U.S. Constitution, statutes, congressional rules, and formal congressional precedents. But this overlooks another source of “law”: the common law of informal precedent and practices that each House and individual committees have developed over time (regardless of party control).
Mastering of this common law can be critically important in managing the tremendous present and future risk of a congressional inquiry.
But there is one critical catch—this “common law” is not systematically reported. Instead, like the common law of Sir Edward Coke, its recordation is left to the vagaries of those parties present (often at quasi-public or nonpublic proceedings). And like any common law, it is always subject to reversal.
A few examples are useful.
Use of Subpoenas
You received a burdensome document request from a congressional committee. A crucial factor in crafting a response is understanding when the committee has credible resort to compulsory process. The applicable rules of procedure and precedents tell you how resort to process may be had, but that is only half the story.
Over many decades, committees in Congress have developed their own sets of customs regarding resort to compulsory process.
To take an example, if you are a private entity and you are under investigation by the Senate Permanent Subcommittee on Investigations, you didn’t receive a document request; you received a subpoena in the first instance. If you are under investigation by certain Senate committees it is worth knowing that both sides of the aisle see resort to subpoena as extraordinary—a subpoena hasn’t issued in decades.
If you are before House Committee on Oversight and Government Reform, it is valuable knowledge that for many Congresses both Republican and Democratic chairmen alike have treated records requests as defacto subpoenas—a failure to substantially comply will almost certainly lead to compulsion.
Your company’s most sensitive business records have been subpoenaed by a committee. Will the committee keep them confidential? What protections can you request? The applicable law tells you little. There are no applicable constitutional, statutory, or regulatory provisions.
The only court precedent remotely on point is two D.C. Circuit cases that contain the hortatory conclusion that Congress is presumed to deal appropriately with confidential information. Absent extraordinary procedures, there are no House rules on the subject. And the applicable Senate rule, Rule 29.5, is vague to the point of being textually useless. But there is a common law.
In the Senate, Rule 29.5 draws its shape from the unwritten pronouncements of the Senate legal counsel as glossed by committee practice.
To take an example, under these precedents, the Senate’s lead investigative committees all treat documents produced by an entity during an investigation as committee records subject to the protection of Rule 29.5. Rule 29.5 in turn is read to mandate that records may only be publicly released by the committee as part of an official act, which is generally seen as limited to entry into the record on the floor or in a committee hearing or report.
Senate committees have also developed a common law independent of Rule 29.5 under which entities whose information is slated for release are—assuming the appropriate request is made—typically given notice and opportunity to be heard prior to public release.
In the House, each committee makes its own common law.
For example, the House Committee on Financial Services follows the Senate procedure discussed above—with the caveat that an official act is defined much more broadly to reach even the appending of documents to a simple letter from the chairman. Other committees take a far less protective approach, with chairmen of both parties providing no opportunity to be heard, and frequently leaking documents to the press.
Common Law Claims of Privilege
While both Houses of Congress have long taken the position that they are not required to recognize common law claims of privilege, many committees have long recognized common law privileges in individual cases as a matter of grace. In so doing, those committees have developed a common law governing both when they will recognize a common law privilege by grace, and (perhaps more importantly) how that privilege must be asserted.
The import is clear: woe the attorney who waives a claim of attorney-client privilege that would usually be allowed under a committee’s common law precedent due to a failure to follow the attendant committee common law precedent requiring that privileges be asserted in timely fashion and with particularity.
The foregoing examples make the critical point—failure to fully understand the common law under which a committee is prosecuting its investigation can have serious consequences. Accordingly, anyone facing a congressional investigation should take care to engage counsel whom via the logic of experience and prior congressional service are truly well-versed in this congressional common law.
Sam Dewey is counsel at McDermott Will & Emery in Washington, D.C. He previously served as the senior counsel for oversight and investigation to the House Financial Services Committee and the chief investigator and counsel to the Senate Special Committee on Aging. He has experience representing numerous clients in executive branch investigations, congressional investigations before many House and Senate committees, and appellate and trial proceedings.