Responding to a Congressional Subpoena

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Responding to a congressional subpoena requires thorough preparation and a clear understanding of the process and the risks involved. Congressional committees established by Supreme Court rulings issue subpoenas to targets and witnesses. Knowing whether the executive branch committee that issued your subpoena treats you as a target or a witness is critical for making informed decisions about your response.

But, whether you are the target (or your company is the target) of law enforcement investigations or you are a witness in a congressional committee’s investigation of someone else, you need to be careful to protect yourself. Saying the wrong thing could cause the committee to expand the scope of its investigation—or potentially give the committee the information it needs to pursue federal charges.

“Receiving a congressional subpoena can be worrisome. If you have received a subpoena from a congressional committee, the steps you take next will be critical for you (and your company, if applicable). Hiring an attorney who has experience with congressional investigations and who is familiar with the rules of congressional committees will be essential for avoiding unnecessary adverse consequences.” - Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

Given the risks of testifying in front of Congress, is it best to ignore your congressional subpoena? Failing to respond to a congressional subpoena can have serious consequences, including criminal prosecution. As a result, if you have received a congressional subpoena, you need to respond to the government officials and do so quickly and appropriately based on the advice of experienced legal counsel.

What is a Congressional Subpoena, and Who Can Issue One?

A congressional subpoena is a formal order issued by a congressional committee that compels the recipient to produce records, provide testimony, or both. Committees and subcommittees of the House of Representatives and Senate Legal Counsel use their subpoena power to further conduct congressional investigations, which can target an extremely wide range of issues.

Conducting investigations allows members of Congress to make informed decisions about establishing or amending federal laws, overseeing federal programs, protecting the public interest, preserving national security, and preserving our federal system of checks and balances. As such, they serve a critical role within the legislative branch, and subpoena recipients also have a critical role to play. Both the Senate Rules and the House of Representatives Rules allow committees and subcommittees to issue subpoenas to further their investigative efforts and pursue criminal contempt.

As noted above, the consequences of failing to comply with a congressional subpoena can be substantial. Under federal law, noncompliance with a congressional subpoena can warrant criminal prosecution. Additionally, for both targets and witnesses, noncompliance can raise questions about why this route was chosen, and this will often lead to further and more invasive inquiries. Thus, ignoring a congressional subpoena is not advisable. If you have reason to believe that your congressional subpoena may be invalid or unenforceable, the right approach is to challenge the subpoena in the appropriate federal forum—not to ignore it.

What Should You Do After Receiving a Congressional Subpoena?

Once you receive a congressional subpoena, you must act swiftly to protect yourself and ensure you respond appropriately. Here are some of the key steps in the process

1. Understand That Compliance with Your Congressional Subpoena is Almost Certainly Required

While there are limited grounds for challenging a congress's power (as discussed below), you can generally expect that you will be required to comply with your congressional subpoena, at least in part. When subpoena recipients fail to comply voluntarily, Congress has three primary options to compel compliance:

  • Inherent Contempt
  • Civil Contempt
  • Criminal Contempt

Inherent contempt has not been used in decades. Historically, it allowed Congress to try to subpoena recipients for noncompliance and imprison them until they complied or until the current session of Congress ended. For obvious reasons, it is no longer in use today.

However, the other two are very real options. In civil contempt cases, the congressional committee that issued the subpoena in question can seek a court order to enforce the subpoena in federal court. If Congress holds you in criminal contempt, the relevant committee members can request that the U.S. Department of Justice (DOJ) bring charges against you for not complying with the subpoena 2 U.S.C. Section 192. Refusal to testify or provide records to Congress in violation of a congressional subpoena is a misdemeanor that carries civil or criminal penalties and up to one year of federal imprisonment.

2. Hire a Federal Defense Attorney

Preparing to produce records or provide testimony in response to a congressional subpoena requires experienced legal counsel. A federal defense attorney who has experience representing clients during congressional investigations to a grand jury will be able to explain everything you need to know and what you need to do to avoid unnecessary risks. Your attorney can also seek to engage with members of the congressional committee that issued your subpoena to learn more about its investigation and your role in the investigative process.

3. Determine Whether You Can (and Should) Challenge Your Congressional Subpoena

While Congress’s investigatory powers are broad, they are not absolute. There are limits to what Congress can investigate, and there are also limits on its subpoena power. If you have grounds to challenge your congressional subpoena, your attorney can assist with identifying these grounds and take appropriate legal action on your behalf.

Congress can only investigate issues that fall within its legislative authority conferred by the U.S. Constitution. Issuing a subpoena to investigate any issue that falls outside of this authority would violate the federal separation of powers. The U.S. Supreme Court has also held that Congress cannot investigate a private citizen without having a legislative purpose. Even when the focus of a congressional investigation is appropriate, a congressional subpoena itself can be invalid due to overbreadth, exceeding the relevant committee’s investigative power, or a variety of other issues.

However, even when a target or witness has grounds to challenge a congressional subpoena, in the vast majority of circumstances a successful challenge will not result in the subpoena being quashed in its entirety. Rather, a challenge is more likely to result in limiting the scope of the subpoena or extending the recipient’s deadline to respond. Thus, even when a target or witness works with legal counsel to challenge a congressional subpoena, the target or witness will generally need to simultaneously undertake efforts to comply with the subpoena (to the best of its abilities) as well.

4. Gather and Review All Relevant Records

If the committee or subcommittee that issued your congressional subpoena is requesting documents, you will need to work with your counsel to gather and review all relevant records as quickly as possible. It is not unusual for congressional subpoenas to request voluminous records, and the committee members who issued the subpoena may not have a full understanding of the scope of their request. This may or may not provide grounds to challenge the subpoena’s scope; but, in any case, it is critical to ensure that you have a comprehensive understanding of all pertinent facts as well as the legal issues involved in the committee’s or subcommittee’s inquiry.

Along with helping you gather and review all relevant records, your attorney should also be able to assist with preserving the attorney-client privilege and asserting any other privileges that may apply. Again, Congress’s subpoena power is not absolute. Targets and witnesses subpoenaed to provide records have clear legal rights, and asserting these legal rights effectively is essential.

5. Prepare Thoroughly for Your Congressional Testimony

If you have been subpoenaed to testify, your attorney will advise you on what to say and how to say it. Your attorney will work with you to make sure you understand exactly how to answer the committee members’ questions and when you should decline to answer or seek the advice of counsel. Thorough preparation is essential—not only because it affords the best chance of avoiding adverse outcomes as a result of the investigation, but also because embarrassing misstatements and glaring oversights can lead to negative publicity.

Your congressional subpoena should provide insight into the types of questions you will be asked; and, as noted above, your attorney can seek additional insight from the relevant committee or subcommittee members as well. Your review of the relevant records will likely provide key insights as well. With that said, it is critical not to make any assumptions about the questions you may or may not be asked, but instead to make informed decisions based on a thorough review of as much information as possible.

While these are some of the major steps involved in responding to a congressional subpoena, this list is by no means exhaustive. Preparing responsive documents or preparing testimony (or both) is both a time-intensive and resource-intensive process. Informed decision-making is key, and making informed decisions requires an accurate understanding of both the relevant facts and the relevant law under the specific circumstances at hand. Once again, working with an experienced federal defense attorney is critical, as an attorney who has relevant experience will be able to guide your preparations while also taking any and all necessary legal measures to protect you (and your company) to the fullest extent possible.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

© Oberheiden P.C.

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