Whitewater and Russian Rapids

On “The 11th Hour with Brian Williams” to discuss the Mueller indictments:

Jack Sharman – MSNBC – The 11th Hour with Brian Williams (Oct. 31, 2017) from LFW on Vimeo.

We have discussed the Special Counsel’s case before: Search Warrants and Russia Raids.

Congress will likely take a turn here.  We have reviewed the role of Congressional investigations and special counsel investigations:


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

Time flies.

Lessons From An Ex-Congressional Lawyer  

Strong hair.

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

 


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:

Lessons From An Ex-Congressional Lawyer

In particular:

We are in the summer months.  We have written before about  summer hearings:

As a former oversight-and-investigations lawyer for a House committee, I can testify: summer is the high season for O&I hearings.  Nothing is going on legislatively, O&I hearings don’t require lobbyists or constituents, it is hot as hell but most House and Senate hearing rooms have good air-conditioning these days and, if you get some hearings under your belt in June and July, you’ll have plenty as a Member to talk about in your district or state.

Because most people are familiar with Congressional investigations only through television, they assume that if they are caught up in an investigation they will be summoned to testify before a committee like John Dean or Oliver North, with cameras clicking amid vigorous partisan drama.  Although your client may indeed be called to testify in a public hearing — and you should prepare as though your client will be called — it is more likely that constraints of time, the demands of the media, and political pressure and compromise having little to do with your client will result in your client never being called.  If your client testifies, remember that in many instances the committee members’ “questions” are not actually designed to elicit information from the witness.  Rather, questioning is often more like speech-making designed to maximize camera time on the questioner or to score political points against the opposition.

These  lessons were reinforced in my latest job in this arena: Special Counsel to the Alabama House Judiciary Committee for the impeachment investigation of Governor Robert Bentley.

Talk of President Trump and impeachment seems to have subsided for the moment with the appointment of former FBI Director Robert Mueller as a Special Counsel to investigate potential links between the Russian government and the Trump campaign.

What are some points to keep in mind as these investigations — congressional and criminal — move down their parallel tracks?

Jacket and tie, please.

The Grand Jury Is Grand. The criminal investigators will largely call the shots.  How so?

There are two reasons that there will likely be increased negotiation and tension between Congress and the Special Counsel.

Telling Tales. The first reason is one common to all federal criminal investigations: no prosecutor wants his or her witnesses making statements, especially public statements under oath. Sworn statements lock the witness into a story and can be used by defense counsel for cross examination in a potential criminal trial.

Federal Knights Who Say “Ni!” The second reason is that, much like the terrifying “Knights Who Say ‘Ni!'” in the 1975 film Monty Python and The Holy Grail who look down upon the coconut-slapping Knights of the Round Table, federal prosecutors do not usually hold congressional investigators in high esteem although they convey that view with varying degrees of politeness.  (Of course, I have expressed a differing view, sometimes with varying degrees of politeness). I learned this lesson both from my Whitewater time as Special Counsel to the House Financial Services Committee for the investigation of President and Mrs. Clinton’s dealings with Madison Guaranty and also from the recent impeachment investigation of Alabama Governor Robert Bentley.

INCENTIVE NOTE: If you make it to the end of this post, there is a “Knights Who Say ‘Ni!'” clip.

This clash between prosecutors and congressional investigators should not be too surprising. Congressional investigations and grand jury investigations serve different institutional and constitutional mandates. From time to time, there will be some tension.

Paging through for immunity.

Immunity? Congress could bugger up the criminal investigation by granting General Michael Flynn (or other witnesses) immunity in exchange for their testimony.  As noted by Philip Shenon in Politico, after the Iran-Contra prosecutions of Colonel North and Admiral Poindexter, that is unlikely to happen:

The special prosecutor was convinced that Congress was on the verge of sabotaging his politically charged investigation—one that led straight into the White House and threatened to end with a president’s impeachment. And so he went to lawmakers on Capitol Hill with a plea: Do not grant immunity to witnesses in exchange for their testimony if you ever want anyone brought to justice.

But the plea failed. And the special prosecutor, Lawrence Walsh, a former federal judge appointed in 1986 to investigate the Iran-contra affair during the Reagan administration, watched two of his highest-profile targets go free: former National Security Adviser John M. Poindexter and Poindexter’s deputy, Lieutenant Colonel Oliver North. Although both former Ronald Reagan aides were later convicted at trial of multiple felonies, the convictions were overturned, with appeals courts deeming the prosecutions tainted as a result of the testimony the men had given to Congress with grants of supposedly limited immunity.

Read the full article: How Congress Could Cripple Robert Mueller.

As a reminder: a grant of congressional immunity raises a potential “Kastigar” problem for a criminal prosecutor.  As the United States Court of Appeals for the District of Columbia Circuit said in United States v. North:

Because the privilege against self-incrimination “reflects many of our fundamental values and most noble aspirations,” Murphy v. Waterfront Comm’n, 378 U.S. 52, 55, 84 S. Ct. 1594, 1596, 12 L. Ed. 2d 678 (1964), and because it is “the essential mainstay of our adversary system,” the Constitution requires “that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.” Miranda v. Arizona, 384 U.S. 436, 460, 86 S. Ct. 1602, 1620, 16 L. Ed. 2d 694 (1966).

The prohibition against compelled testimony is not absolute, however. Under the rule of Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), a grant of use immunity under 18 U.S.C. § 60021  enables the government to compel a witness’s self-incriminating testimony. This is so because the statute prohibits the government both from using the immunized testimony itself and also from using any evidence derived directly or indirectly therefrom. Stated conversely, use immunity conferred under the statute is “coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege…. [Use immunity] prohibits the prosecutorial authorities from using the compelled testimony in any respect….” Kastigar, 406 U.S. at 453, 92 S. Ct. at 1661 (emphasis in original). See also Braswell v. United States, 487 U.S. 99, 108 S. Ct. 2284, 2295, 101 L. Ed. 2d 98 (1988) (“Testimony obtained pursuant to a grant of statutory use immunity may be used neither directly nor derivatively.”).

When the government proceeds to prosecute a previously immunized witness, it has “the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.” Kastigar, 406 U.S. at 461-62, 92 S. Ct. at 1665. The Court characterized the government’s affirmative burden as “heavy.” Most courts following Kastigar have imposed a “preponderance of the evidence” evidentiary burden on the government. See White Collar Crime: Fifth Survey of Law-Immunity, 26 Am.Crim.L.Rev. 1169, 1179 & n. 62 (1989) (hereafter “Immunity”). The Court analogized the statutory restrictions on use immunity to restrictions on the use of coerced confessions, which are inadmissible as evidence but which do not prohibit prosecution. Kastigar, 406 U.S. at 461, 92 S. Ct. at 1665. The Court pointed out, however, that the “use immunity” defendant may “be in a stronger position at trial” than the “coerced confession” defendant because of the different allocations of burden of proof. Id.

Committee assignment?

Constitutional Theater. Congressional investigations, in part, are political theater.  That’s okay.  As we have noted elsewhere:

The fact that there appear to be no rules in a congressional investigation underscores perhaps the primary fact that counsel should bear in mind: the committee’s investigation takes place in a political environment, not a litigation environment.  Although the investigatory process appears legalistic, it always unfolds in a political environment in which the actors have political goals that may or may not have anything to do with your client.

Because most people are familiar with Congressional investigations only through television, they assume that if they are caught up in an investigation they will be summoned to testify before a committee like John Dean or Oliver North, with cameras clicking amid vigorous partisan drama.  Although your client may indeed be called to testify in a public hearing — and you should prepare as though your client will be called — it is more likely that constraints of time, the demands of the media, and political pressure and compromise having little to do with your client will result in your client never being called.  If your client testifies, remember that in many instances the committee members’ “questions” are not actually designed to elicit information from the witness.  Rather, questioning is often more like speech-making designed to maximize camera time on the questioner or to score political points against the opposition.

When a congressional committee issues a subpoena, for example, it may (and will) do so with the knowledge and expectation that the recipient may not make even a good-faith attempt at compliance.  With regard to recent subpoenas sent to intelligence agencies by the House Intelligence Committee, for example:

Where NSA had previously complied with the House panel’s investigators, sources said that cooperation had ground to a complete halt, and that the other agencies – FBI and CIA – had never substantively cooperated with document requests at all.

Read the story by James Rosen: House Intelligence Committee sends subpoenas to intel agencies

Come to order?

Enforcing subpoena compliance is a legally and politically difficult maneuver for a congressional committee, especially where it seeks enforcement against the executive branch.  Customarily, the subpoena issues, then a bit of Kabuki theater ensues, and an agreement is reached, as in the case of General Flynn.  Although there are multiple reason why General Flynn . . .

5 Possible Reasons Why Michael Flynn Is Now Turning Over Documents

. . .  . may have decided to comply with the document subpoena from the Senate Intelligence Committee, one possible explanation is that his lawyer simply reached an agreement about the scope of responsive documents that was tolerable.

As a necessary aside, I object to the ATL description of the D.C. Circuit’s North opinion as a “three decade old precedent from a split panel [that] rested on a mushy determination that North’s congressional testimony ‘tainted’ the criminal prosecution.”  As Judge David Sentelle’s judicial clerk at the time, I reiterate the court’s observation:

The fact that a sizable number of grand jury witnesses, trial witnesses, and their aides apparently immersed themselves in North’s immunized testimony leads us to doubt whether what is in question here is simply “stimulation” of memory by “a bit” of compelled testimony. Whether the government’s use of compelled testimony occurs in the natural course of events or results from an unprecedented aberration is irrelevant to a citizen’s Fifth Amendment right. Kastigar does not prohibit simply “a whole lot of use,” or “excessive use,” or “primary use” of compelled testimony. It prohibits “any use,” direct or indirect. From a prosecutor’s standpoint, an unhappy byproduct of the Fifth Amendment is that Kastigar may very well require a trial within a trial (or a trial before, during, or after the trial) if such a proceeding is necessary for the court to determine whether or not the government has in any fashion used compelled testimony to indict or convict a defendant.

We readily understand how court and counsel might sigh prior to such an undertaking. Such a Kastigar proceeding could consume substantial amounts of time, personnel, and money, only to lead to the conclusion that a defendant–perhaps a guilty defendant–cannot be prosecuted. Yet the very purpose of the Fifth Amendment under these circumstances is to prevent the prosecutor from transmogrifying into the inquisitor, complete with that officer’s most pernicious tool–the power of the state to force a person to incriminate himself. As between the clear constitutional command and the convenience of the government, our duty is to enforce the former and discount the latter.

Read the entire North opinion here.

Open invitation.

Congressional subpoenas (such as the one to the right) are not the only examples of tension in legislative investigation.  In the impeachment investigation of Alabama Governor Robert Bentley, the issue of legislative authority to enforce subpoenas against the executive branch was front and center, as set out in the Special Counsel’s report:

The Committee Has Subpoena Power.

The Committee has inherent, constitutional authority to issue subpoenas pursuant to its investigative powers.  The investigative power of the legislature and, by extension, legislative committees, have been further derived from its broad legislative power.  This precedent, though it does not directly discuss legislative subpoenas, clarifies the broad powers enjoyed by the Alabama Legislature while showing great deference to the Legislature’s enactments.  Further, an extensive list of other states that have addressed the issue of legislative subpoenas has unanimously endorsed such an ability, with no court finding that its state’s legislature lacks this power.   

This Committee has broad power to investigate.

“The Legislature is laden with a broad form of governmental power which is plenary in character, and subject only to those express limitations appearing in the Constitution.”[1]  This authority is “absolute or exclusive.”[2] The Legislature’s plenary power is not, as has been suggested by Governor Bentley throughout this investigation, derived from either the State or Federal constitutions; to the contrary, these documents serve as the only limitations upon the Legislature’s power.[3] “Apart from limitations imposed by these fundamental charters of government, the power of the [Alabama] Legislature has no bounds and is as plenary as that of the British Parliament.”[4]

Inherent in the power to legislate is the power to investigate.  In McGrain v. Daugherty, the United States Supreme Court held that  “[t]he power to legislate carries with it by necessary implication ample authority to obtain information needed in the rightful exercise of that power, and to employ compulsory process for that purpose.”[5]  Relying on this precedent, the Alabama Supreme Court also has held that “the power to legislate necessarily presupposes necessity for investigation by members of each House.”[6]  This “inquiry power” is sweepingly broad.[7] It encompasses not only the authority to investigate into the propriety of existing and proposed laws but also into the departments of the government “to expose corruption, inefficiency or waste.”[8] Indeed, the United States Supreme Court has recognized that “Congress’s investigative power is at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a government department.”[9]  States, too, have recognized that the legislature “is acting at the height of its powers” during an impeachment process.[10]  So long as it is “related to, and in furtherance of, a legitimate task” of the legislature, the inquiry falls within the permissible bounds of legislative investigation.[11] 

The federal constitution does not give Congress subpoena power, but the United States Supreme Court has repeatedly held that the power to obtain information through compulsion has long been treated as “an attribute of the power to legislate.”[12]  “[W]here the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it.”[13] And while “[i]t is unquestionably the duty of all citizens to cooperate with Congress in its efforts to obtain the facts needed for intelligent legislative action,”[14] “[e]xperience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.”[15]  Thus, a necessary component of the power of investigation is a process to enforce it.[16]

Like the federal courts, the majority of state courts “quite generally have held that the power to legislate carries with it by necessary implication ample authority to obtain information needed in the rightful exercise of that power, and to employ compulsory process for that purpose.”[17]  Relying on McGrain and general notions of the plenary authority of the legislature, courts across the country have upheld the constitutionality of legislative subpoenas as inherent in the broad legislative authority afforded to state legislatures.[18]

[1] Ex parte Alabama Senate, 466 So. 2d 914, 917 (Ala. 1985) (quoting Hart v. deGraffenried, 388 So. 2d 1196, 1197 (Ala. 1980)) (emphasis in Ex parte Alabama Senate).

[2] Id. at 918.

[3] In re Opinion of the Justices No. 71, 29 So. 2d 10, 12 (Ala. 1947).

[4] Id.  (citing Alabama State Federation of Labor v. McAdory, 18 So.2d 810 (Ala. 1944)).

[5] McGrain v. Daugherty, 273 U.S. 135, 165 (1927); see also Mason’s § 795(5) at 562 (the legislature has “the power in proper cases to compel the attendance of witnesses and the production of books and papers by means of legal process”).

[6] See In re Opinion of the Justices No. 71, 29 So. 2d at 13 (citing McGrain, 273 U.S. 135); see also Mason’s § 795(2) at 561 (“The legislature has the power to investigate any subject regarding which it may desire information in connection with the proper discharge of its function . . . to perform any other act delegated to it by the constitution.”).

[7] See Watkins v. United States, 354 U.S. 178, 187 (1957) (“The power of the Congress to conduct investigation is inherent in the legislative process.  That power is broad.”).

[8] See id.

[9] Todd Garvey, Congress’s Contempt Power and The Enforcement of Congressional Subpoenas: A Sketch, Congressional Research Service, April 10, 2014, at 3 (citing Watkins, 354 U.S. at 187). 

[10] Office of Governor v. Select Comm. of Inquiry, 858 A.2d 709, 738 (Conn. 2004). 

[11] See Watkins, 354 U.S. at 187.

[12] McGrain, 273 U.S.  at 161; see also, e.g., Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 (1975).

[13] McGrain, 273 U.S. at 175.

[14] Watkins, 354 U.S. at 187.

[15] McGrain, 273 U.S. at 174.

[16] See id. (“The power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.”); Eastland, 421 U.S. at 491 (“[I]ssuance of subpoenas . . . has long been held to be a legitimate use by Congress of its power to investigate.”).

[17] See McGrain, 273 U.S. at 165.

[18] See, e.g., Conn. Indem. Co. v. Superior Court, 3 P. 3d 868 (Cal. 2000); Garner v. Cherberg, 765 P. 2d 1284 (Wash. 1988); In re Shain, 457 A. 2d 828 (N.J. 1982); Commonwealth ex rel. Caraci v. Brandamore, 327 A. 2d 1 (Pa. 1974); Maine Sugar Industries, Inc. v. Maine Industrial Bldg. Authority, 264 A. 2d 1 (Maine 1970); Chesek v. Jones, 959 A. 2d 795 (Md. 2008); Sheridan v. Gardner, 196 N.E. 2d 303 (Mass. 1964); Gibson v. Florida Legislative Investigation Committee, 108 So. 2d 729, 736 (Fla. 1958); State ex rel. Fatzer v. Anderson, 299 P. 2d 1078 (Kan. 1956); Du Bois v. Gibbons, 118 N.E. 2d 295 (Ill. 1954); Nelson v. Wyman, 105 A. 2d 756 (N.H. 1954); In re Joint Legislative Committee, etc., 32 N.E. 2d 769 (N.Y. 1941); Terrell v. King, 14 S.W. 2d 786 (Tex. 1929).

Read the Special Counsel report here.

And, here is your reward for getting all the way through this post:

 


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:

The First Amendment.

The First Amendment.

The Fifth Amendment.

The Fifth Amendment.

 

There has been plenty of news coverage about Martin Shkreli, “pharma bro” and alleged securities fraudster, and his appearance before Congress.  (Examples are herehere 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 of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

White-collar lawyer Sara Kropf has an excellent post here on Shkreli’s invocation of his Fifth Amendment rights.  She notes:

Congress does this All. The. Time. And every time it is a colossal waste of time and taxpayer dollars. If Congress wants to investigate drug prices, then do that. But don’t haul someone before a committee to testify, knowing that he will take the Fifth. It’s a constitutional right, for goodness’ sake. There’s an ongoing criminal investigation, and any lawyer worth her salt would tell him to take it.

Read the entire post: Why Does Congress Put Witnesses Through This Charade?

Law professor, former AUSA and blogger Randall Eliason has an extensive piece here about various aspects of the Shkreli saga:

Shkreli’s attorney made it clear in advance of the hearing that Shkreli would invoke his Fifth Amendment right against self-incrimination. That was no surprise. Even though the hearing was not specifically about Shkreli’s criminal case, there would be too much risk that something he said might end up facilitating his own prosecution. Almost any lawyer would likely give him the same advice.

Shkreli’s lawyer asked that his client be excused from attending the hearing, since he was not going to be able to answer questions. But Congress insisted that he appear, threatening him with additional criminal sanctions if he ignored the subpoena. And so, in a familiar Washington theater production, Shkreli sat before the committee, with his attorney in the “I am not a potted plant” seat directly behind him, and repeatedly invoked his right to remain silent in response to every question.

Read the entire post: The Ongoing Legal Saga of Martin Shkreli.

For corporations, executives and businesspersons of all stripes, there is a great deal to learn from Congressional investigations:

As the former Special Counsel to House Committee on Banking and Financial Services for the Whitewater investigation involving President and Mrs. Clinton,  I have written before about the perils (and weirdnesses) of Congressional testimony: Lessons From An Ex-Congressional Lawyer:

Although the Congress respects constitutional privileges (e.g., the Fifth Amendment privilege against self-incrimination), it does not officially recognize common-law protections such as the attorney-client privilege or the work-product doctrine.  Rather, many committees will often take the position that recognition of such privileges is discretionary with the committee.  As a practical matter, however, committee counsel and staff will often accept a well-grounded privilege claim.  Companies that are the target of major parallel investigations will often waive common-law privilege, either to show good faith and cooperation, or as part of a settlement with the government.

Unlike a criminal defendant, a witness before a Congressional committee cannot refuse to testify altogether, but  must rather invoke the privilege in response to specific questions.

Very '90s.

Very ’90s.

Remarkably, the theater can be simultaneously stressful and boring:

Because most people are familiar with Congressional investigations only through television, they assume that if they are caught up in an investigation they will be summoned to testify before a committee like John Dean or Oliver North, with cameras clicking amid vigorous partisan drama.  Although your client may indeed be called to testify in a public hearing — and you should prepare as though your client will be called — it is more likely that constraints of time, the demands of the media, and political pressure and compromise having little to do with your client will result in your client never being called.  If your client testifies, remember that in many instances the committee members’ “questions” are not actually designed to elicit information from the witness.  Rather, questioning is often more like speech-making designed to maximize camera time on the questioner or to score political points against the opposition.

Despite Mr. Shkreli’s cartoonish image – and it may be nothing more than that, just an image – there is something refreshing when one witnesses defiance, with constitutional grounding, in the face of massed political power. The Members’ frustration arose not so much from Shkreli’s attitude as from the fact that the Members knew they lacked the political will to actually hold him in contempt (and then to try and convince the United States Attorney for the District of Columbia to prosecute him).

That lack of will, coupled with the fact that Congressional hearings are political theater, means that such events are not the best teaching grounds for lawyers or clients.  Nevertheless, we can all learn a few lessons from Mr. Shkreli.

Getting carded, back when there was no casual Friday.

Getting carded, back when there was no casual Friday.

First, don’t be a chicken about keeping your mouth shut: your business, your family and your liberty depend on it.  People in business, whether senior executives, middle managers or line employees, recoil from the notion of refusing to answer questions from any representative of the Government (including Members of Congress).  Separately, I have elsewhere described this impulse as The Efrem Zimbalist, Jr. Syndrome:

“Everyone will think I did it” is a common theme, as is “I can just explain it so they can understand it.”  The former statement is likely true, but it is irrelevant if you can avoid prison or a business-crippling indictment, fine or government-contracting debarment.  The latter statement is almost never true: by the time a Government agent wants your statement, he or she already has a pretty good idea of what he or she understands.

And let your lawyer toot your horn.

And let your lawyer toot your horn.

Second, in declining to speak to the Government, be civil and professional, but cool.  “Cool” not like, say, Miles Davis, but “cool” as in “calm” or “settled.”  Investigators, agents and regulators can be very persistent and can make you feel as if it’s un-American to not speak with them.

Third, follow your lawyer’s instructions.  It is surprising how many otherwise prudent, savvy businesspeople will keep talking after their lawyer has counseled them to not do so.  In the Times video embedded above, even Mr. Shkreli says that he he will follow his lawyer’s advice.

Go thou forth and do likewise.

Lawyer up

 


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 investigations, as well as executive-branch oversight hearings such as Benghazi.  Counsel should be aware of their evidentiary impact.  In particular, he or she must move aggressively to limit the adverse impact of discovery produced in one forum on other proceedings.  Given the scope of Congressional investigatory power, however, this task can be difficult.[1]

Where the only two competing interests are simultaneous civil and criminal proceedings, of course, it is not uncommon for defendants to seek a stay of the civil proceedings – often with the express or implied agreement of the government – until resolution of the criminal action.

Where the third competing investigatory interest is Congress, however, the picture becomes less clear.  Although not without limits, legitimate Congressional investigatory authority reaches any matter on which Congress can legislate.  For separation-of-powers reasons, courts are reluctant to address claims of Congressional investigatory overreaching, at least absent a clear due process problem.  Thus, counsel will not be able to enjoin a Congressional subpoena, for example, or impose upon the committee a protective order for his or her documents.[2]   Counsel’s greater chance of success lies in persuading committee counsel or staff that the scope of document requests or subpoenas can be narrowed such that the client’s interest is protected while still allowing the committee to carry out its function.  Counsel should also seek alternative discovery mechanisms, such as allowing committee staff to review documents first, without actually taking possession of them.

 

Congress and Privileges

Although the Congress respects constitutional privileges (e.g., the Fifth Amendment privilege against self-incrimination), it does not officially recognize common-law protections such as the attorney-client privilege or the work-product doctrine.  Rather, many committees will often take the position that recognition of such privileges is discretionary with the committee.  As a practical matter, however, committee counsel and staff will often accept a well-grounded privilege claim.  See generally Note, The Attorney-Client Privilege in Congressional Investigations, 88 Col. L. Rev. 145 (1988).  Companies that are the target of major parallel investigations will often waive common-law privilege, either to show good faith and cooperation, or as part of a settlement with the government.

Very '90s.

Very ’90s.

Unlike a criminal defendant, a witness before a Congressional committee cannot refuse to testify altogether, but  must rather invoke the privilege in response to specific questions.

 

Alien Environment

For most civil or criminal litigators, a Congressional investigation is an alien environment.  Although there are House rulesHouse committee rules, Senate rules and Senate committee rules, there are no reassuring guideposts, no analogs to the Federal Rules of Evidence or of Criminal or Civil Procedure.  From a litigator’s perspective, rule number one is that there are few rules.  The issue is one of control: unlike the civil litigation context, the congressional forum is one in which you are likely to be buffeted by forces that are largely beyond your control.

Done before lunch.

Done before lunch.

The fact that there appear to be no rules in a congressional investigation underscores perhaps the primary fact that counsel should bear in mind: the committee’s investigation takes place in a political environment, not a litigation environment.  Although the investigatory process appears legalistic, it always unfolds in a political environment in which the actors have political goals that may or may not have anything to do with your client.

The political environment will demand several things of counsel, some of them inconsistent.

 

The Personal and the Political

Congressional investigations are not monolithic.  They are often highly personalized between Members; between the majority and minority parties; between staffs; and between committees with potentially overlapping jurisdictions.  Counsel should therefore remember that he or she is dealing with individual people rather than the institution of “Congress.”

Counsel may be proud of his or her “Rambo” litigation style, a style that unfortunately is often successful in a world of uniformly applied rules, broadly-construed discovery standards and tolerant judges.  In the Congressional forum, however, committee counsel and staff usually possess near-plenary authority that they exercise with considerable discretion.  Even when they do not make the rules, they apply them, and they will be rarely overruled by their Chairmen solely on the complaint of a private party.

Looking for the flamethrower?

Looking for the flamethrower?

Thus, counsel should be firm, and be aggressive where necessary, but be polite to committee counsel and staff, both majority and minority.  Brendan Sullivan’s virulent, scorched-earth defense of Oliver North during the televised Iran/Contra hearings is the exception that proves the rule: in addition to the fact that Colonel North as a client offered his lawyers advantages and disadvantages peculiar only to Colonel North, Sullivan made a considered tactical decision that high-profile aggression was the appropriate tack in that particular public theater.  You may reach the same conclusion, but do not do so reflexively.

 

Learn the Context of the Investigation

As soon as you or your client is contacted, attempt to gain as much information as possible about the investigation in general and your client in particular.  The first and most obvious source should be your client and your client’s documents.  In addition, unlike grand jury investigations, Congressional investigations do not remain secret for extended periods.  In additional to national media, Washington specialists such as National JournalRoll Call and The Hill can provide useful background on personal and political dynamics.

 

Be Proactive at the Outset

Be proactive with committee counsel and staff.  Although you may determine later for strategic reasons that it is wiser to lay low (or be recalcitrant), a sound initial approach is to act promptly and to attempt to understand the individuals and issues involved.  Ask lots of questions.  What is the subject of the investigation?  How long has it been going on?  How long might it last?  Are any other committees or subcommittees looking at the same issue?  Is the Executive Branch (the Department of Justice or the regulatory agencies) looking at the same issue?  Is the committee headed towards hearings?  Has a date been set?  Is the investigation a bipartisan inquiry?  Minority only?  Majority and minority, but working separately?

Delete.

Delete.

Such information is valuable in determining if you are facing a full-blown, formal committee investigation or a preliminary (and perhaps unsanctioned) probe by a curious, bored or ideologically-driven staffer.  If the latter, you have an opportunity to slow down or stop the inquiry before it gathers steam.  You may be able to accomplish this goal by direct persuasion, simply convincing the staffer that there is “no there there.”  The political opposition on the committee may have an interest in stopping the investigation, or bending it to their own ends, and it will usually be in your client’s interest to consult with staff or counsel for the other party.  Thus, make every effort to find out the names of the committee lawyers or staffers in charge of the investigation (both majority and minority).  For the same reason, if the executive branch appears to be involved, identify the relevant lawyers from the Department of Justice or the regulatory agencies.

 

Why My Client?

You must then attempt to determine your client’s role in the investigation — or, more precisely, the committee’s perception of your client’s role.  Why is your client involved?  How did his or her name come up?  If the request is for an interview or deposition, ascertain the subject areas to the extent staff is willing to describe them.  What are the ground rules, if any?  Is there a House or Senate resolution concerning the investigation?  You should request a copy of such a resolution, if any, as well as a copy of the committee’s rules.  A committee cannot exercise authority it does not have.  Although committee authority is often broad, resolutions and rules define authority and offer counsel opportunities to exploit.  A careful examination of these materials will yield a better understanding of the procedural and substantive protections available to your client, and thus will help you make strategic decisions (for example, whether you should participate voluntarily or only by subpoena; whether the staff deposition to which your client is being asked to submit is formally authorized; whether or not the committee intends to grant witnesses immunity).[3]

 

Hearings

And the Congressional livin' is easy.

And the Congressional livin’ is easy.

We are in the summer months.  We have written before about  summer hearings:

As a former oversight-and-investigations lawyer for a House committee, I can testify: summer is the high season for O&I hearings.  Nothing is going on legislatively, O&I hearings don’t require lobbyists or constituents, it is hot as hell but most House and Senate hearing rooms have good air-conditioning these days and, if you get some hearings under your belt in June and July, you’ll have plenty as a Member to talk about in your district or state.

Because most people are familiar with Congressional investigations only through television, they assume that if they are caught up in an investigation they will be summoned to testify before a committee like John Dean or Oliver North, with cameras clicking amid vigorous partisan drama.  Although your client may indeed be called to testify in a public hearing — and you should prepare as though your client will be called — it is more likely that constraints of time, the demands of the media, and political pressure and compromise having little to do with your client will result in your client never being called.  If your client testifies, remember that in many instances the committee members’ “questions” are not actually designed to elicit information from the witness.  Rather, questioning is often more like speech-making designed to maximize camera time on the questioner or to score political points against the opposition.

This practice is particularly prevalent in the House, where Members must usually follow the “five-minute” rule, which limits an individual Member’s questioning to that period of time.  Your client should expect frequent interruptions; indeed, it is a somewhat rare occasion under the five-minute rule when a witness is actually able to complete an answer.  There is no judge present to whom the witness can appeal, nor should you expect the chairman to step in.  In the face of such grandstanding, a witness’s only remedies are his or her opening statement, and potential softball questions from friendly Members.

Whether or not your client’s interests are best served by testifying, you should consider what steps you need to take (1) if he is called and (2) if he is not called.  For example, many committees require several hundred copies of a witness’s prepared or opening statement, and they must be delivered usually 24 hours in advance of the witness’s appearance.  What do you want to put into the opening statement?  What are other witnesses saying in their opening statements?  If your client is not called, is the opening statement something you can provide to the press as a release?  Do you have a media package ready, whether or not your client testifies?  Have you confirmed with staff where you can sit during the hearing?[4]   These are all questions you should consider carefully well in advance of the hearing day.

 

Clean Up and Post-Mortem

Whether or not your client is involved in high drama, do not forget the details at the end.  Your client should review and correct testimony where permissible.  If you have reached any sort of confidentiality agreements with counsel and staff (e.g., redacting personal information out of documents or deposition transcripts prior to their publication), you should confirm your understandings in writing.  You must also look ahead.  Will there be additional investigations, perhaps by other committees or in the other legislative chamber?  Has this investigation had an effect on any civil or criminal proceedings against your client?  Have you been made aware of new sources of documentary or testimonial discovery that can help or hurt your client?  Careful planning and professional flexibility at the end of the congressional investigatory process are just as important as they are at the beginning, and will serve your client well.

 



[1]Congressional investigatory power is “as penetrating and far-reaching as the potential to enact and appropriate under the Constitution.”  Barenblatt v. United States, 360 U.S. 109, 11 (1959).  Congress can enforce its investigatory will through, among other means, the contempt power.  The congressional contempt provision, 2 U.S.C. Section § 192, provides that

 

[e]very person who having been summoned as a witness by the authority of either House of Congress . . . to produce papers upon any matter under inquiry before either House . . . willfully makes default . . . shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 and imprisonment in a common jail for not less than one month nor more than twelve months.

 

Under this provision, “willfulness” refers to intentional conduct, United States v. Bryan, 339 U.S. 323 (1950), not bad faith or moral turpitude.  Braden v. United States, 365 U.S. 431, 437 (1961).  Neither mistake of law nor advice of counsel excuses a violation of the statute.  See Sinclair v. United States, 279 U.S. 263, 299 (1929) (advice of counsel); Watkins v. United States, 354 U.S. 178, 208 (1957) (mistake of law).

For an exhaustive bibliography of Congressional investigations, look here.

    [2]A witness who believes that a subpoena is defective (for example, that it was issued beyond the committee’s authority, or that it violates the witness’s constitutional rights) has limited avenues of recourse.  Essentially, the witness must refuse to comply; be cited for contempt; and raise the objection as a defense in the contempt proceeding.  See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503-07 (1975) (the Speech or Debate Clause raises “an absolute bar to judicial interference” with a Congressional subpoena).

    [3]In the Whitewater investigation during the 104th Congress, for example, the Senate Special Committee to Investigate Whitewater and Related Matters operated pursuant to a relatively comprehensive Senate resolution that authorized funding for the investigation, including staff; set out the subject matter of the inquiry; and described discovery authorities and procedures.  The House Banking Committee operated pursuant to no special resolution but rather relied on its delegated oversight authority.

    [4]Many committees do not allow lawyers to sit at the witness table or even to speak during the hearing, except to counsel the witness as to his or her constitutional rights.  See, e.g., 108th Congress, Rules of the House of Representatives (January 7, 2002), Rule XI 2(k)(3) (“Witnesses at hearings may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights.”)  This protocol places a high premium on thorough witness preparation prior to the hearing.