Congressional investigations: politics and process.

• Author: Hamilton, James

1. HISTORICAL OVERVIEW II. CONGRESS'S INVESTIGATIVE POWERS AND LIMITATIONS A. Congress's Power to Investigate 1. Authority to Investigate 2. Subpoena Power 3. Power to Take Testimony 4. Immunity Power 5. Contempt Power a. Inherent Authority b. Criminal Contempt c. Civil Contempt B. Limitations on Congress's Investigative Powers 1. Constitutional Limitations a. Fifth Amendment b. Fourth Amendment c. First Amendment 2. Non-Constitutional Limitations a. Rules and Authorizing Resolutions b. Pertinency c. Attorney-Client Privilege III. PRACTICAL CONSIDERATIONS A. Understanding the Landscape 1. Gauging Political Realities 2. Working with Committee Staff 3. Know the Committee 4. Hearing Procedures B. Preparation for the Hearing 1. Subpoenaed Documents 2. Counsel's Role at a Public Hearing 3. Fifth Amendment 4. Immunity Considerations 5. Witness Preparation 6. Opening Statements 7. Member Questions C. Other Considerations 1. Representing the Interests of a Corporation 2. Parallel Proceedings 3. Media Issues 4. Leaks 5. The Final Report IV. CONCLUSION The recent elections, which returned both houses of Congress to Democratic control, leave in their aftermath a conclusion shared by virtually all Hill watchers (and now being borne out by events): There will be more congressional oversight and investigations. Certainly, the Bush Administration will be a target. But business entities, particularly those that have benefited from that Administration, undoubtedly also will come under intense scrutiny. This Article focuses on the investigations of business interests.

   To begin, consider the following scenario that, while imagined, is not improbable. The general counsel of your best client, a Fortune 500 manufacturing company, calls, quite disturbed. Here's what she says:

   People are in a panic around here. We've just received letters and subpoenas from the Senate Permanent Subcommittee on Investigations and the Subcommittee on Oversight and Investigations of the House Energy and Commerce Committee. They're investigating whether the company engaged in accounting fraud to inflate earnings to keep stock prices up and justify big bonuses for senior officers, including me. There are document subpoenas calling for well over a million documents. What right do these subcommittees have to investigate our accounting? What right do they have to make us turn over so many records? A lot of these documents contain confidential information about our products and markets that our competitors would love to learn about. And why are they doing this anyway? Can a legislative committee really conduct a criminal investigation?

   But it gets worse. There are also subpoenas seeking testimony from a bunch of company executives, including me. As you know, we're already under criminal investigation and involved in several class and derivative actions because of our accounting. We just can't let some of our officers testify under these circumstances. Frankly, they might incriminate themselves or harm the company. Can the subcommittees force them to testify? Can they take the Fifth? If they do, can the subcommittees grant them immunity? Will they?

   And what about me? Almost everything I know is privileged because I'm the company's main lawyer. I sure don't want all the advice I've given rolled out in televised testimony before some subcommittee. Can I escape testifying because of the attorney-client privilege? I've heard that some congressional committees don't recognize the privilege, but that doesn't make any sense to me.

   What if we just say no? How does a congressional committee enforce its subpoenas? Can't we nip all this in the bud by suing the subcommittees to prevent them from going on a witch hunt? Surely no court would uphold such outrageous subpoenas. Even if we must testify, can we avoid doing it on television? That would be a media disaster! I'd certainly hate to see our officers take the Fifth before twenty million viewers.

   How can we talk them out of this? Who should we go to--staff or Senators and Congressmen? What is our leverage with these people? Our PAC has given a lot of these folks big political contributions. Should we mention this?

   The questions above are among the types that a general counsel, in the predicament described, might well ask. To answer them a lawyer needs to understand the legal principles that govern congressional investigations, have some knowledge about the history of legislative inquiries, and be aware of the political realities that drive many such investigations. A lawyer needs to know that a congressional investigation is a procedural hybrid, part political circus with seemingly little order, and part legal process with unique and explicit rules and procedures. This Article attempts to provide the information necessary to guide a client through the congressional investigation maze.

   First, we present a brief historical perspective of congressional investigations as an aid to understanding both (1) how Congressmen view their investigative prerogatives and the benefits that may flow to them from a vigorous inquiry, and (2) the impact investigations may have on their subjects and the national scene. Next, we lay out the basic rules that govern congressional inquiries, focusing mainly on those relevant to private, non-governmental parties under investigation. (1) Finally, we discuss a variety of practical issues that practitioners will confront in dealing with members and staff, both informally and in a hearing context. In the process, we answer the questions asked by our fictitious general counsel.

1. HISTORICAL OVERVIEW

   A lawyer representing a client before a congressional body should understand the prominent role congressional investigations have played in American history. Members of Congress, to a greater or lesser degree, are aware of this history and of the potential of congressional investigations to bring to light social conditions that require corrections, to expose wrongdoing, to inflict harm on the innocent, to gain partisan advantage, and to raise the stature of those conducting the investigations. They understand the power vested in them and jealously protect their prerogatives. The history of a particular committee is part of its institutional memory, and counsel enters a world with its own language, rules, rituals and traditions. (2) Members of Congress and staff are guided by a committee's history and precedents as they conduct investigations.

   Congressional investigations have been engaged in by Congress since 1792, (3) although they had their genesis in the English Parliament. (4) A brief recounting of the major investigations of the twentieth century shows their importance to the nation and the broad scope of Congress's authority to examine matters of critical public significance:

   * The "Money Trust" investigation in 1912-13 studied the nation's growing concentration of economic power in the hands of figures like J.P. Morgan and John D. Rockefeller and resulted, inter alia, in the passage of significant antitrust legislation: the Clayton Antitrust Act of 1914 and the Federal Trade Commission Act of 1914. (5)

   * The Teapot Dome investigations in the early 1920s, explored scandals in the Harding administration--involving, e.g., bribery regarding the Teapot Dome oil reserves--and eventually resulted in several prosecutions, including that of Harding's Secretary of the Interior, Albert B. Fall. (6)

   * The wide-ranging New Deal investigations examined the causes and results of the Great Depression, exploring the operations of stock exchanges, public utility holding companies, unfair labor practices, lobbying, the munitions industry and railroad reorganization. The investigations spawned legislation that changed the national landscape, such as the Banking Acts of 1933 and 1935, the Securities Act of 1933, and the Securities Exchange Act of 1934. (7)

   * From 1938 until the 1950s, several congressional committees, (8) using methods now held in disrepute, looked for communist activity and influence in various facets of American life and government the Army, the State Department, churches, universities, tax-free foundations and the press. Eventually, Senator McCarthy was condemned by the Senate for his conduct. In 1948, Richard M. Nixon came to national prominence because of his role in the House Un-American Activities Committee's (HUAC) investigations of Alger Hiss. (9)

   * Another future President, Harry S. Truman, gained stature by his chairman ship of the World War II Senate Special Committee to investigate the National Defense Program, which, starting in 1941, effectively examined the nation's preparedness for the war. (10)

   * In 1950-51, the Senate Special Committee to Investigate Organized Crime in Interstate Commerce, initially chaired by Senator Estes Kefauver, paraded many gangland figures, such as crime boss Frank Costello, before the committee and a television audience. Many indictments resulted. (11)

   * In 1957-59, the Senate Select Committee on Improper Activities in the Labor or Management Field, chaired by Senator John McClellan, uncovered substantial union corruption and was the catalyst for the passage of the Landrum-Griffin Act. (12)

   * 1973-74 saw the Watergate investigations by, first, the Senate Select Committee on Presidential Campaign Activities (the Senate Watergate Committee) and, later, by the Judiciary Committee of the House of Representatives, which examined whether President Nixon should be impeached. The Senate Watergate Committee's inquiry uncovered substantial evidence showing the involvement of senior government officials in the Watergate burglary and cover-up. (Nixon was implicated in the cover up by the famous White House tapes, which the committee discovered.) It also uncovered substantial evidence of campaign dirty tricks, illegal campaign contributions and the abuse of federal resources for the President's political purposes. The House Judiciary Committee sent an...