A successful response to a congressional investigation involves preparation, strategic cooperation and the avoidance of common mistakes, Robert S. Hoff and Julie A. Edelstein of Wiggin and Dana write. Although the inquiry itself may be beyond the target’s control, how to respond is not.
With the upcoming midterm elections and the country’s political acrimony seemingly increasing every day, a new Congress will likely be interested in investigating political, business and individual adversaries. Potential targets should begin thinking ahead.
Once a congressional investigation is underway, or even when there is reason to anticipate one, early decisions can affect whether the inquiry remains manageable or spirals into a crisis. Congressional investigations differ from litigation or enforcement actions in significant ways: There are no detailed procedural rules, no impartial judge to resolve disputes in real time and no guarantee of confidentiality. The investigation typically unfolds in a political environment where motivations range from genuine legislative purpose to political retribution.
Assemble the right team
A corporation or individual anticipating potential congressional scrutiny should begin preparing before receiving formal notice. This means assembling a multidisciplinary team, including in-house legal and compliance personnel, government affairs professionals and communications advisors. Where parallel proceedings are likely, such as regulatory investigations, grand jury inquiries or civil litigation, coordinating strategy is essential to avoid damaging inconsistencies.
For corporations, it is also critical to identify whether any individual employee faces personal exposure that may conflict with the entity’s strategy.
Preserve documents
As soon as a congressional inquiry becomes reasonably foreseeable, a litigation-style document hold should be implemented, regardless of whether a formal subpoena has been issued. The hold should ensure the preservation of all potentially relevant documents and communications, including emails, text messages and messaging platforms, and should be communicated clearly to all relevant custodians. Contemporaneous documentation of preservation is critical if disputes arise later.
Understand the nature of the inquiry and try to shape it
Congressional investigations vary in scope from narrowly focused inquiries to industry-wide crackdowns. The big-tech antitrust hearing of 2020 demonstrates how thoroughly committees may prepare; there, the House Judiciary Subcommittee on Antitrust investigated Facebook, Amazon, Apple and Google for over a year, conducting hundreds of hours of interviews and gathering more than 1.3 million documents before the CEOs of the four tech giants testified. During that hearing, lawmakers used damaging internal company documents, such as confronting Mark Zuckerberg with emails showing Facebook bought Instagram to neutralize a competitive threat.
Given how wide-ranging investigations can be, preparing for and responding to a congressional investigation requires an understanding of its scope and trying to negotiate the narrowest scope possible. Counsel should engage with committee staff to clarify and narrow the scope of the inquiry. Counsel can attempt to negotiate accommodations like a narrower document scope, alternative witnesses, written responses in lieu of live testimony or in camera review for commercially sensitive information.
Understanding the scope also means recognizing the political context. Investigations motivated by political retribution or generation of favorable publicity proceed differently than those more focused on oversight. In politically motivated inquiries, the committee’s interest may lie less in obtaining specific documents than in creating a public spectacle or pressuring a target into damaging admissions. And sometimes investigations that start with a legitimate, non-political concern can turn into political theater. The Wells Fargo fake accounts investigation illustrates how a single viral exchange can define an entire proceeding. During that hearing, Sen. Elizabeth Warren’s demand that CEO John Stumpf resign and be criminally investigated became a moment that was mocked on late-night TV and replayed endlessly, shaping the public narrative far more than the substance of the underlying record. Recognizing dynamics like this early on allows respondents and their counsel to adequately prepare.
Prepare thoroughly, but not too rigidly
Thorough preparation for testimony is key. Congressional testimony differs from trial testimony or depositions; witnesses face questioning from members who may be more interested in political points than eliciting facts. The 2018 Facebook/Cambridge Analytica hearings offer a striking example of the need for preparation. During those hearings, lawmakers asked Zuckerberg about 600 questions over two days. He repeatedly responded that he did not know answers or would “check with his team,” and his testimony was described as “inaccurate at times,” negatively affecting Facebook’s and Zuckerberg’s reputations.
On the other hand, the 2023 campus antisemitism hearings offer a cautionary tale about over-prepared or canned answers. When Rep. Elise Stefanik pressed the presidents of Harvard, UPenn and MIT on whether “calling for the genocide of Jews” would violate their school’s code of conduct, their answers were widely criticized as overly legalistic and lacking moral clarity, leading to national uproar, bipartisan condemnation and ultimately the resignation of two of the university presidents.
Practice sessions, thorough preparation and learning from others’ past mistakes are important in preparing for testimony.
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Read moreDetailsAvoid common pitfalls
When congressional investigations lead to reputational or other negative consequences, it is sometimes not because of the underlying conduct being investigated but because of missteps in the response. The most damaging errors fall into three categories.
- Obstruction and document destruction. Nothing transforms a routine inquiry into a crisis faster than the perception that a target has destroyed documents or otherwise obstructed the investigation. Even inadvertent spoliation can create devastating optics, which is why robust preservation protocols are critical.
- Inconsistent statements. Because congressional investigations often run parallel to other proceedings, a witness’s statements before Congress may conflict with positions taken elsewhere. Inconsistencies fuel media narratives of dishonesty and can form the basis of criminal referrals for false statements. Coordinating testimony across forums is essential. The Boeing 737 MAX hearings of 2019 illustrate this danger. CEO Dennis Muilenburg was accused of telling “half-truths,” and he admitted that he was aware a test pilot had raised safety questions before the second crash — a damaging admission given the company’s earlier public statements to the contrary. Muilenburg faced calls to resign and was later ousted as CEO.
- Public confrontation. Particularly in politically motivated investigations, targets may be tempted to respond combatively, issuing public statements attacking the committee’s motives, filing preemptive litigation or engaging in a media war. Although public pushback is sometimes appropriate, aggressive posturing can antagonize investigators and attract additional scrutiny.
Defenses available in congressional investigations
The constitutional authority of Congress to investigate is broad but not unlimited; it must bear a nexus to a legitimate legislative function. Individuals who are subpoenaed to appear before Congress retain constitutional protections, as stated by the US Supreme Court in Barenblatt v. United States and more recently in Trump v. Mazars. Accordingly, individuals can assert their First Amendment right to limit inquiries into their associations, their Fourth Amendment right against unreasonable searches and seizures and their Fifth Amendment right against self-incrimination, which Dr. Anthony Fauci recently did in a hearing. While the Fifth Amendment right is absolute, First Amendment rights are subject to a balancing test between private and public interests.
In addition, individuals can assert that a subpoena lacks a legitimate legislative purpose or violates separation of powers. What constitutes a legitimate legislative purpose has been construed broadly, but Congress cannot assert powers reserved for other branches (e.g., law enforcement). Congress’s questions must also be pertinent to the valid subject of investigation. Individuals may also assert common law and constitutional privileges, such as attorney-client privilege or executive privilege.
In practice, however, challenging an investigation through litigation is rarely a winning strategy; federal courts have limited appetite for interbranch disputes. The more pragmatic approach is to cooperate where legally required, preserve objections for the record, manage the public narrative and build alliances with members who share concerns about overreach.
Consequences of noncompliance
There are potential criminal and civil consequences for noncompliance with a congressional subpoena. First, it is a misdemeanor, punishable by a fine between $100 and $1,000 and imprisonment between one and 12 months, to willfully refuse to provide testimony or documents in contravention of a congressional subpoena. When such a refusal occurs, the relevant committee reports the refusal to the president of the Senate or speaker of the House, who certifies the contempt citation to the appropriate US attorney. The DOJ may then bring the matter before a grand jury.
Second, Congress may through a resolution authorize a lawsuit to enforce a subpoena by seeking a civil judgment requiring compliance. While the Senate has the authority to do, recent practice and case law suggest the House may do so as well. If a court rules that the subpoena is valid and noncompliance has occurred, the individual may be held in contempt of court.
The most damaging congressional appearances share common features: viral exchanges that drive reputational harm, evasive or overly legalistic answers and a failure to consider parallel criminal, regulatory and civil exposure.
Robert S. Hoff 
Julie A. Edelstein
