Former U.S. Government Attorneys Representing Recipients of Congressional Subpoenas
Standing committees of the House and Senate rely on Congress’s broad powers to investigate a wide array of issues. From suspected political misconduct to large-scale cybersecurity failures, consumer fraud, and environmental crimes, these committees rely on Congress’s subpoena power, established by Supreme Court rulings, to gather information and build cases to present to the grand jury for prosecution by the U.S. Department of Justice (DOJ) in federal court.
House and Senate committees subpoena both targets and witnesses. Witnesses may include accounting firms, service providers, business partners, associates, and confidants—among many others. As a result, if you have received a congressional subpoena, whether in your individual capacity or as a corporate representative or custodian, one of the first questions to be answered is, “Why?” Have you been subpoenaed because a House or Senate committee is targeting you (or your company)? Or, are members of the investigating committee seeking to learn what you (or your company) knows about another individual or entity? The answer isn’t always as clear as it may seem.
Responding to a congressional subpoena as a target and as a witness are two very different propositions. At the same time, however, providing information to Congress requires a measured approach regardless of the circumstances involved. Congressional subpoena recipients need experienced legal counsel, and they should engage counsel to begin crafting their responses right away.
Defense Counsel for Congressional Subpoenas Deeply Embedded in Washington Politics
Oberheiden P.C. is a federal defense law firm deeply embedded in Washington politics. Led by founding attorney Nick Oberheiden, Ph.D., our congressional response team includes former U.S. Attorneys, Assistant U.S. Attorneys, DOJ prosecutors, and federal agents. Our lawyers have advised government officials, defense contractors, and corporate executives subpoenaed to testify before House and Senate standing committees, and our former federal agents offer insights from working on both sides of congressional investigations.
Our Services for Congressional Subpoena Recipients
We provide full-service legal representation for congressional subpoena recipients. While this begins with responding to the subpoena itself, it extends through and beyond the inquiry of the investigating congressional committee. We have extensive experience representing individual and corporate clients in DOJ matters as well—including law enforcement investigations and civil and criminal trials.
Our services for congressional subpoena recipients include:
- Evaluating the Scope, Nature, and Priorities of the Investigation – We will review the congressional subpoena to determine (i) why you have been subpoenaed, (ii) what records or testimony you are being asked to provide, and (iii) what the investigating congressional committee is seeking to gain from your involvement in its investigation.
- Communicating with Members of the House or Senate Committee – As warranted, we will communicate with members of the investigating committee to negotiate the scope of the subpoena, secure protections for you or your company, and ensure that the committee members who are on your side will be actively involved going forward.
- Collecting and Preparing Documents in Response to Congressional Subpoenas – Collecting and preparing the requested documents in response to a congressional subpoena is typically a challenging and time-consuming process. Our lawyers will manage the process and help you submit an appropriate response on time.
- Preparing Oral Testimony to Be Delivered on Capitol Hill – If you are being called to testify on Capitol Hill, our lawyers and consultants will work with you extensively to prepare your opening statement, anticipate questions, and craft your responses.
- Providing Representation in the U.S. Capitol Building – Our lawyers will also be by your side when you walk into the U.S. Capitol Building to testify. While House and Senate committee rules restrict lawyers’ involvement during live testimony, we will be there to advise you to the full extent of our authority.
What Recipients of Congressional Subpoenas Need to Know
There are several factors that make responding to a congressional subpoena unlike anything else. Whether you have been subpoenaed to provide documents or to testify before congress, here are some important facts you need to know:
1. The Scope of Congress’s Subpoena Power
Congress’s subpoena power is extremely broad. House and Senate committees face very limited oversight with regard to their issuance of subpoenas, and the grounds for challenging congressional subpoenas are sparse at best. Congressional committees can subpoena public officials, private citizens, and corporate entities, and they can use Congress’s subpoena power to obtain extraordinary volumes of information when this information might not be available to the government through other investigative means, as long as they are operating under “valid legislative purpose”.
2. Addressing Risks, Challenges, and Impossibilities
With this in mind, what can (and should) recipients of congressional subpoenas do to protect themselves? What if a congressional subpoena recipient cannot, as a practical matter, comply with its subpoena within the timeframe allowed? In these scenarios, it is imperative to have defense counsel who can communicate with members of the investigating committee effectively. It will often be possible to negotiate the scope of a congressional subpoena—provided that defense counsel has an understanding of the committee’s goals and can offer a solution that provides adequate protection while still satisfying the committee’s priorities.
3. The Attorney-Client Privilege is Not Guaranteed
During congressional investigations, the attorney-client privilege is not guaranteed. This is a crucial fact for subpoena recipients to keep in mind when preparing responsive documents and testimony. However, experienced defense counsel will often be able to secure protection for privileged materials and communications through the negotiation process.
4. Political Dynamics Can Play a Key Role
It is no secret that House and Senate committee investigations are often politically motivated. When political dynamics are at play, this is not a factor to be overlooked. In fact, the political dynamics of a congressional investigation can have a direct impact on how a subpoena recipient should approach its response. These dynamics can inform other actions that need to be taken in response to the committee’s inquiry as well.
5. Non-Compliance Can Have Severe Consequences
While it will often be possible to negotiate a congressional subpoena recipient’s obligations, recipients should never assume that they will be able to provide less than a fully compliant response. Failing to fully comply with a congressional subpoena can have severe consequences —including (but not limited to) the ability to pursue criminal contempt of congress charges, and Congress can make a referral to the executive branch and have someone criminally prosecuted, and Congress does have the power to use “inherent contempt”, although it hasn’t been used since 1935.
FAQs: Responding to a Congressional Subpoena
Why Have I Received a Congressional Subpoena?
There are several reasons why you may have received a congressional subpoena. Determining why a standing committee has asked you to produce documents or testify starts with scrutinizing the subpoena itself, but this alone may not be enough. It may also be necessary to contact the committee or gather intelligence about the committee’s investigation through other means. When you engage our firm to represent you (or your company), our lawyers will work quickly to discern the purpose and scope of the committee’s investigation.
What Do I Need to Do in Response to a Congressional Subpoena?
What you need to do in response to a congressional subpoena depends on the language of the subpoena. Broadly speaking, a congressional subpoena can compel production of records or testimony (or both). Producing records in response to a congressional subpoena often requires a gargantuan effort, while preparing testimony requires an insightful and strategic approach based on a clear understanding of what Congress is investigating and why.
Can I Ignore a Congressional Subpoena?
No, you cannot simply ignore a congressional subpoena. Congress has substantial enforcement authority, and failing to produce records or provide testimony in response to a congressional subpoena can lead to civil or criminal sanctions. If you have concerns about responding to a congressional subpoena, you should consult with federal defense counsel before doing anything that could lead to negative consequences. Additionally, the subpoenas are immune from judicial interference.
How Long Do I Have to Respond to a Congressional Subpoena?
The deadline for responding to a congressional subpoena (or the date on which you are being subpoenaed to testify) will be stated on the subpoena itself. Once you have been served with a congressional subpoena, it is extremely important that you meet this deadline. If you fail to submit a timely and compliant response, or if you do not show up to testify when called upon to do so, you will risk being held in contempt and facing civil or criminal penalties.
Will Information I Provide in Response to a Congressional Subpoena Be Kept Confidential?
Generally speaking, information provided in response to a congressional subpoena is not kept confidential. For obvious reasons, this presents significant concerns for many subpoena recipients. If your congressional subpoena requires production of confidential records or requires you to disclose confidential information in your testimony, this is a matter your defense counsel can work to address with the investigating committee before your response deadline or hearing date arrives.
Speak with a Lawyer at Oberheiden P.C. about Your Congressional Subpoena
The federal defense lawyers and consultants at Oberheiden P.C. provide strategic advice and representation for congressional subpoena recipients based on substantial real-world experience. If you have received a subpoena from a House or Senate standing committee, we can help you protect your interests while meeting your legal obligations. To get started with a complimentary initial consultation, please call 888-680-1745 or tell us how we can reach you online today.
Further Information About Congressional Subpoenas
- 5 Mistakes to Avoid When Testifying Before Congress
- 5 Things You Need to Know about Testifying Before Congress
- Are Congressional Subpoenas Enforceable?
- Can Congress Subpoena Private Citizens?
- Invoking the Fifth Amendment Before Congress
- Testifying Before Congress
- What is a Congressional Subpoena?
- What is the Constitutional Due Process for Congressional Subpoenas?
- What is the Penalty for Refusing a Congressional Subpoena?
- What is the Senate Subpoena Power?
- Who Has Subpoena Power in Congress?