Receiving a congressional subpoena is probably scary. It’s asking you to provide documents or to testify before a congressional committee. Or it could be asking for both! Maybe you are the target of Congress’s investigation. Or maybe you are a witness caught up in Congress’s investigation of someone else. Either way, how you move forward will dictate the events of the congressional investigation.

“Receiving a congressional subpoena can be worrisome. The steps you take next are critical for you and your business. If you received a congressional subpoena, your best defense is to hire an attorney experienced in congressional investigations and the rules of the congressional committees.” - Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

Failure to respond to a congressional subpoena can lead to devastating consequences, including possible criminal charges. Thus, if you received such a subpoena, you must acknowledge it and retain the legal services of a defense attorney as soon as possible.

What is a congressional subpoena & who can issue one?

Congressional subpoenas are orders issued by Congress in pursuance of a congressional investigation. A congressional investigation refers to a proceeding held by a committee or subcommittee of either house in Congress.

The purpose of such investigations is for Congress to be able to make or amend federal laws; oversee federal programs; or provide a check on the other branches of government. Such power is very broad. Congress can investigate any topic under which its legislative duties fall.

It is recognized that Congress does not have “all the answers or information” and, thus, must seek or investigate before it enacts new laws or amends old ones. Both the Senate and the House of Representatives are made up of committees who each have jurisdiction in different legislative areas.

For example, the Senate Commerce Committee formed a subcommittee in 1912 to investigate the sinking of the RMS Titanic so that Congress could improve U.S. maritime safety laws. During the investigation, 82 witnesses gave testimony so the subcommittee could gather a better understanding of the facts before recommending how the maritime laws needed to be changed.

Congressional subpoenas are issued to compel compliance with a congressional investigation. A congressional subpoena is an order demanding an individual or a business to either testify before Congress or to produce requested documents or records.

Both the Senate Rules and the House of Representatives Rules allow their committees and subcommittees to issue subpoenas to further their investigatory proceedings.

What to do after receipt of a congressional subpoena?

Once you receive a congressional subpoena, you need to act swiftly to protect your rights. Here are the steps you should follow after receiving a congressional subpoena.

#1 – Understand that You Must Comply with the Congressional Subpoena

At first, you might think that you can fight or ignore the subpoena. You cannot. Failure to abide by a congressional subpoena can have devastating consequences for you and your business. If you do not comply, you can be held in contempt of Congress. There are three different avenues Congress may take.

• Inherent Contempt
• Criminal Contempt
• Civil Contempt

Know that Inherent Contempt has not been used in decades. It was when Congress brought the individual before Congress, tried them for noncompliance, and imprisoned them until they complied with the subpoena or until the session of Congress terminates.

However, the other two are real options. If Congress holds you in criminal contempt, either the House of Representatives or the Senate can request that the Department of Justice bring charges against you for not complying with the subpoena under the corresponding federal statute. If convicted, this is a misdemeanor that carries with it fines and imprisonment for up to 12 months.

If civil contempt is pursued, the congressional committee will go to the judiciary and get a court to enforce the subpoena in civil court.

And note that if you are held in contempt in any of these ways, it can harm your business and your reputation, which in turn will affect your revenues, stocks, and customer loyalty.

Thus, you must take a congressional subpoena very seriously.

#2- Hire a federal defense attorney.

Now that you know you must comply with the congressional subpoena, the next step is to hire your legal counsel, a federal defense attorney. An attorney will be able to explain step by step what happens during the congressional investigation. Further, an attorney might also be able to converse with the committee to find out more about the investigation and its scope.

Your attorney will also help with damage control regarding media attention. Many times, the media will learn of the congressional investigation. This may mean airing on television that your company is being investigated by Congress. This can have a destructive effect on your business and reputation if not handled properly.

Your attorney will have experience in how to mitigate damage to your reputation and goodwill, and how to keep such unwanted media attention away from you and your business.

#3 – Make sure the congressional subpoena is valid.

While congressional investigatory powers are broad, they are not absolute. There are limits to what Congress can and cannot investigate. Thus, although you cannot ignore a congressional subpoena, your attorney will make sure it is valid before you respond and comply with the congressional committee’s requests.

Congress can only investigate areas that fall within its legislative duties conferred upon it by the United States Constitution. Any topic outside of this parameter would be a violation of the separation of powers. Further, the Supreme Court has held that Congress cannot investigate a private citizen without having a legislative purpose.

If the congressional investigation does not meet this criterion, then it is illegitimate, as are the subpoenas issued according to it.

Your defense attorney will understand these restrictions and will examine your case to determine if the congressional committee is acting properly.

#4 – Prepare documents and testimony with your attorney.

Once you have retained an attorney and it is determined that the subpoena is valid, the next step is compliance. If the committee is asking for documents, you need to start gathering this information. Similarly, if the committee requested you to answer questions and testify before the committee, you must gather all information to tell your story.

Once you have this, you need to review it with your legal team. They will be able to guide you on which documents and/or parts of your story fall within the scope of the congressional subpoena. Further, they will also be able to determine if any information that you are required to testify about would lead to criminal charges against you. If so, they will advise you to invoke your 5th Amendment right to remain silent.

#5 – Practice, practice, practice!

If documentation is required, your attorney will help you prepare it and send it to the congressional committee following their rules.

If testimony is required, your attorney will advise you on what to say and how to say it. They will work with you to make sure you understand exactly how to answer the committee’s questions. Further, every committee has its own rules regarding who talks when and for how long.

Your attorney will know these rules and help you prepare your opening statement and answers so that you never run out of time and can answer every question fully and accurately without running out of time.

Conclusion

Congressional committees use subpoenas to aid in the gathering of information to support and use in the investigation that they are pursuing. If you have received a congressional subpoena, you should hire a legal defense attorney who will help you understand your rights and options.