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5 Mistakes to Avoid When Testifying Before Congress

Dr. Nick Oberheiden
Attorney Nick Oberheiden
Testifying Before Congress
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Testifying before Congress sounds intimidating. No matter who you are: The target of the investigation or an expert witness. You’ve been issued a subpoena, are going before a legislative committee, and will be answering questions under oath.

Don’t go in blindfolded! Check out these five common mistakes that witnesses can make when testifying before Congress. Knowing what they are and how to avoid and overcome them will make your life a lot easier.

Mistake #1 – Lying to Congress

During congressional investigations, committees or subcommittees of either House of Congress hold hearings. Individuals are summoned to testify before the committee regarding various topics. Many of these investigatory hearings are, therefore, under oath.

What does this mean?

It means that before you start speaking and responding to the committee members’ questions, you must swear before the committee that you promise to tell the truth. Each committee and subcommittee makes its own rules regarding if and how a witness’s testimony will be under oath. For example, witnesses before the House Oversight and Reform Committee take the following oath:

“Do you solemnly swear or affirm that the testimony that you are about to give is the truth, the whole truth, and nothing but the truth, so help you God?”

Any deviation from the truth could be ruinous. It will enable a prosecutor to bring perjury charges against you. What exactly is perjury?

Perjury refers to the act of intentionally telling a false statement during an official proceeding after taking an oath or promise not to. In addition to existing laws, the Supreme Court has held that if a witness lies during a congressional hearing, they can be convicted of perjury.

If you are caught telling false statements to the congressional committee, you can face a fine and/or five years in prison.

Moreover, under a different statute, you can face the same penalty – but you don’t even have to be under oath!

Takeaway: Lies are never a good option – especially when it’s a lie to the United States government.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Mistake #2: Forgetting Your Manners

The next mistake witnesses make is having an unlikeable personality. This may seem insignificant, but it is very important. If you are a witness giving expert testimony, being disrespectful can have a negative impact on the weight the committees put on your testimony. The same is true if you are championing a cause to a committee. If you are the target of an investigation, then you certainly want to portray yourself as a humble, polite person.

So, here are some easy steps to remember.

Don’t interrupt:

When the committee members are giving their opening statements and later when they start asking you questions, do not interrupt them. Let them finish talking. Congressional hearings have distinct rules and are meticulously planned. Every committee member usually gets an opening statement and then time for questions. In turn, the witness has a specified time to answer the questions. So, there is no need for interruptions.

Don’t be hostile

If you feel the line of questioning turn cold, or rather, you feel that the committee members hit a “hot topic”, don’t rise to meet their emotions. You may feel the need to defend yourself or your position. Don’t. Just stay calm and answer their questions.

Don’t be a know-it-all

No matter what you’re pursuing in life, nobody likes a show-off. Yes, you’re probably an expert in your field – that’s why Congress called you to testify. Or, if you’re the target of the investigation, you’re the expert in your business.

But remember to stay humble. You will get your turn to speak and share your knowledge and story. If you feel one of the committee members stated something incorrectly or differently and you feel the need to correct the record, wait until it is your turn to speak.

Takeaway: Remembering to be polite and respectful will allow you to be a more credible and likable witness.

Mistake #3: Running out of Time

Be mindful of the time. Every committee will have its own rules regarding time. Your opening statement will most likely have a set time. Each committee member will speak for an allotted time and will have their time to ask questions and for you to respond.

At Oberheiden P.C., we are well-versed in the different rules of the congressional committees, and we will inform you of your time limits and help you can prepare your answers so that time constraints are never a problem for you.

Takeaway: Prepare answers to the committee’s suspected questions ahead of time to ensure time management when speaking.

Mistake #4: Refusal to Answer Questions after Congressional Subpoena

It’s scary to be the center of a congressional committee’s attention. At one point you might want to stop answering questions and hope you can leave. However, if you refuse to answer questions, you can be held in contempt of Congress.

This means you are essentially obstructing the committee’s investigation by not cooperating. This has the possibility of criminal charges being brought against you or a civil suit to order your compliance.

Cooperation is an easier route. Your attorney can be in the room with you during the hearing. Although you will be the one speaking, we will be there as well. And although you must answer questions, know that if you feel that by answering you will incriminate yourself, then invoke your 5th Amendment immediately.

Takeaway: Answer all of the committee’s questions – unless answering would incriminate you. If that’s the case, then invoke your 5th Amendment.

Mistake #5: Talking Too Much

Yes. The above advice is to not refuse to answer questions. But at the same time, don’t talk too much. At Oberheiden P.C. we will help you brainstorm any questions that may be asked and prepare your responses.

Talking too much might make you make Mistake #3 – running out of time. Even if it doesn’t, having short, succinct answers will make everything go smoother and keep the committee members happier.

Takeaway: Less is more. Let your question be short and sweet (and truthfully) and move on to the next one.

Contact the Congressional Subpoena Attorneys of Oberheiden P.C.

Preparing to testify before a congressional committee can be really challenging. There’s so much to remember and you’re already nervous as it is. Contact our attorneys today. We’ll help take the burden off your shoulders. We’ll take each day step by step so that when the day finally comes, you’ll be the most prepared person in the room. Call us now!

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