Congressional Subpoena

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.

Put our highly experienced team on your side

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former Department of Justice

Brian J. Kuester

Former U.S. Attorney
Former DA

John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach

Former Special Agent (OIG)

Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick

Former Special Agent (FBI & IRS-CI)

Ray Yuen

Former Supervisory Special Agent (FBI)

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