• Congressional Investigations,  Executive Privilege

    The Privileged Few

    From Morgan Chalfant at The Hill, notes on the production of that political and constitutional theater known as “executive privilege”: Jack Sharman, a former special counsel to Congress during the Whitewater investigation, noted that there have not been many judicial opinions concerning struggles between the legislative and executive branches over congressional oversight requests and that in most cases the two sides resolve the dispute outside of the courtroom. Sharman also said executive power has generally increased over the last several decades, apart from a handful of what he termed “retreats” of presidential authority. “The few occasions in … the last 50, 60, 70 years when executive power ended up being…

  • Privilege

    Global Privilege Issues

    [NOTE: my friend and law school classmate Greg Schuetz co-authored this piece, which appeared in the June issue of “The Docket,” the monthly publication of the Association of Corporate Counsel. Greg is Chief Legal Officer for Messer Americas, an industrial and medical gases company based in Bridgewater, New Jersey.  Previously, he was General Counsel-Americas and Head of Global Litigation for The Linde Group, a global gases company, headquartered in Munich, Germany.  Before joining Linde, he managed domestic and international automotive product liability for DaimlerChrysler Corporation, litigated civil disputes at Feeney Kellett Wiener & Bush in Bloomfield Hills, Michigan, and served as an Assistant United States Attorney in Detroit.] Few doctrines are…

  • Compliance,  Ethics,  Internal Investigations

    Summer of Love to Altamont Murder: Innocence, Guilt and Corporate Compliance In A Kavanaugh Era

    The recent furor over the nomination and confirmation of Judge (now Justice) Brett Kavanaugh puts us in mind of a messy truth for companies and businesspeople who must deal with investigations and charges of all stripes, whether as the investigator (in conducting a corporate internal investigation, for example) or as the subject of the charges (a grand jury investigation, or a regulatory enforcement action, or at trial).  In order to create workable compliance programs; to advance a corporate culture the way we wish to; or to defend a company or its executives or employees, we need to come to terms with with a truth not so much “un-American” as “a-American,”…

  • Congressional Investigations,  Impeachment

    Congressional Investigations, Criminal Cases and The Knights Who Say “Ni!”

    We are heading into what appears to be a summer of investigations along the Potomac, some of them in the House and Senate.  What are some of the things we might reasonably expect to see as investigations congressional and criminal cross paths?  And what does Monty Python have to do with it? Previously, I shared a few lessons about congressional investigations. First, the short-version video: Jack Sharman – Learning in Congress from Legal Filmworks Unlimited on Vimeo. Second, a longer how-to approach for lawyers and clients in a congressional investigation: In particular: We are in the summer months.  We have written before about  summer hearings: As a former oversight-and-investigations lawyer for…

  • Congressional Investigations,  Fifth Amendment

    Where Did You Go, Batman? Martin Shkreli, Congress, the Fifth Amendment and You

    It does not help that the most recent symbol of the Fifth Amendment is The Joker:   There has been plenty of news coverage about Martin Shkreli, “pharma bro” and alleged securities fraudster, and his appearance before Congress.  (Examples are here, here and here).   The proceeding itself was snarky, entertaining and time-wasting: Congressional testimony is political theater, no more and no less, but some observations are in order for us non-Joker citizens, as well. As a refresher, it never hurts to take a look at what the Constitution actually says: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment…

  • Congressional Investigations

    Lessons From An Ex-Congressional Lawyer

    Almost two decades ago, I learned several lessons as a Congressional lawyer, some more useful than others.  Here is a 59-second summary of the better lessons. Let’s go over a few more lessons that might be useful, should you or your client be summoned to appear before a House or Senate Committee. The Lessons of Congressional Peculiarities A document request or interview demand from Congressional investigatory staff could be a one-time, narrowly-focused inquiry or part of a complex investigatory broadside – involving simultaneous civil, criminal and congressional investigations into a company (or its employees) or even an entire industry.  Examples in recent times include antitrust, food-and-drug, environmental, financial and corporate-governance…