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Kristina Moore Environmental Inspection Managing Director Strategic Communications and Enforcement Actions FTI Consulting Just Good Business: CONGRESSIONAL INVESTIGATIONS Mitigating Environmental Prepared By Liability & Responding to Kristina Moore Environmental Inspection Managing Director Strategic Communications and Enforcement Actions FTI Consulting May 2019 1 Overview The U.S. Congress’s investigative powers are part of our democracy’s system of checks and balances. Fundamentally, oversight hearings and the investigative process allow Congress, and its staff, to deeply explore matters of public concern. The premise is fairly straight forward - Before Congress can legislate effectively, they must first understand. Moreover, as keepers of the public purse, they have the right to understand how the executive branch has spent tax dollars. Matters of Public Concern Congress’s investigative powers enable it uniquely to speak to matters of great public concern. In other words, Congress has a responsibility to engage in high profile issues that impact Americans. Congress’s power of discovery are expansive, and not the same as procedural rules that govern civil and criminal matters. The only privilege Congress must respect is Executive Privilege. Everything else is an inequitable negotiation based on the weighing and evaluation possible policy outcomes. 3 Matters of Public Concern: Special Tools The Constitution grants the Legislative Branch broad authority to conduct investigations to oversee implementation of existing laws and consider new ones. Special tools at its disposal includes the power to issue subpoenas. A Chairman sits in the shoes of Congress and is therefore within his or her bounds to insist that a party turn over everything that is not covered by executive privilege – provided the Chairperson can articulate a legitimate legislative need for the information. Ranking Members can also engage in oversight activities; however, they do not have the power to compel a party to turn over documents or testify. The vast majority of Congressional investigations are conducted by Committee staff who specialize in oversight and investigations and not the particular subject matter. Because Congress is inherently a political body, so too are their investigations. Given the nature of the rules that govern the House and the Senate – House led investigations tend to be more overtly partisan. In a split government, like we have today – when there is very little legislating going on, there is always an increased focus on Oversight. Courts are notoriously reluctant to rule on matters that are essentially a dispute between two co-equal branches of government. 4 Nuts and Bolts of a Congressional Investigation The lack of clear rules governing the investigative process can be surprising and jarring to clients not used to Congressional scrutiny. Traditional rules of scope, privilege, and confidentiality are recognized at the complete discretion of committee chairmen. In addition to public hearings, certain committees, like House Oversight, have the authority to conduct depositions behind closed doors. While a lawyer for a witness being deposed can certainly object to questions being asked by congressional counsel, the Chairman is the sole arbiter of what objections he or she will recognize. These are just a few examples of the differences between congressional inquiries and other disputes that are settled in a courtroom. 5 Nuts and Bolts of a Congressional Investigation: House Oversight House Oversight is usually the “wild card” Committee. Teeming with freshman members eager to distinguish themselves and seasoned veterans who know how to ask difficult questions that make in house counsel uncomfortable. The current Chairman is Elijah Cummings – a seasoned member from Baltimore who has cultivated an authentic and compelling presence. The Ranking Member is Jim Jordan of Ohio – a leader in the Freedom Caucus – he doesn’t shy away from controversy. Alexandria Ocasio-Cortez (AOC) is a standout Freshman on the Committee who knows how to make waves. For those unfamiliar with the structure of the U.S. House of Representatives, the House Oversight Committee – which is the principal investigatory Committee - employs a massive staff of up to 120 professionals, a healthy mix of seasoned political operatives, attorneys, and communicators. Under House Rule X, the Oversight Committee may at any time conduct investigations of any matter. For past Chairmen, this meant investigating the prevalence of steroids in baseball, the impact of climate change, misdeeds by the private security firm Blackwater, Dick Cheney’s Energy task force, Toyota’s Sticky Gas Pedal and the Deepwater Horizon Oil Spill. This Committee, both the majority and minority, uniquely understands how to leverage the media to accomplish their oversight goals. 6 Congress’s Soft Powers Congress’ institutional powers and prerogatives are multiplied several- fold by its soft powers – its ability to command the attention of the media. To be clear, one of Congress’ greatest assets is its ability to focus the attention of the media and the public on its investigations. Investigative reporters, NGO’s, and other government actors are force multipliers that supercharge congressional action, mostly obviating the need for Congress to seek legal enforcement of their demands. 7 Congress and the 24 Hour News Cycle Reporters closely follow Congressional investigations, and some reporters exclusively cover Congressional Oversight. Investigations make great copy for reporters… they are filled with drama: Legislative titans challenging industrial titans and captains of industry in the name of the public good; the big reveal of private emails that the author never thought would see the light of day; and sometimes – significant fallout – like a CEO resignation or abrupt change in policy. The theatrics of a Congressional Hearing make excellent fodder for the 24 hour cable news cycle, as well as national and state newspapers. Therefore, hearings and investigations carry great reputational risk for anyone unlucky enough to be caught in the crosshairs. 8 Reputational Risk While Congress’s power to compel is immense - Chairmen have very imperfect legal tools to actually enforce their authority. Congress can vote to hold an uncooperative individual in contempt of Congress, but it is up to DOJ to prosecute. Accordingly, the principal cost of not cooperating with Congress is reputational harm. The real power of Congressional Oversight is their bully pulpit and the ability to direct the attention of the media, and other stakeholder, to focus on their agenda. Arguments of Congressional enforcement miss the point entirely. It is not the legal threat of contempt that persuades private actors to comply with congressional commands. Rather, it is the reputational risk that arises when positioned as an adversary to Congress that causes a CEO to respond. 9 Power of the Media Narrative The logic is fairly simple - Members of Congress like to be relevant and impactful on matters that resonate with the public. Therefore – the more attention a controversy gets in the news; the more likely a Chairman is to pay attention and join the conversation by launching an investigation. Moreover, deep investigative pieces by the New York Times, The Washington Post, and more recently – outlets like The Intercept – often provide Chairmen and women with the script of what questions they should be asking to whom. But the current flows both ways - the more Congress pays attention to an issue, the more media attention it gets. Once it matters to a Chairperson – it matters to the media as well. 10 A Smart Media Plan How does a Company protect its reputation? The best defense is a good offense. If your client has reason to believe they Lesson 1 could become the target of a Congressional investigation because of a connection to a policy debate; a crisis; or a scandal – take steps to both control and contain the media narrative early – before a letter arrives at corporate HQ. Know the Terrain and the Rules of Engagement. Make sure your client Lesson 2 understands the political terrain they are operating in – the relevant politics, politicians, staff members, reporters – but most importantly – the rules of engagement. Will the Committee keep your documents confidential or agree to give the company an opportunity to object to their release? What other sources of information as the staff using? Are they known to collaborate with major outlets? Know Your Role – Private actors can get caught up in Congressional Lesson 3 Investigations for several reasons. Is your client the target of the investigation or a tool to get to the real target? This critical distinction helps inform strategy. Know your Allies – and ask them for help. A counter echo chamber supporting Lesson 4 your point of view, or your company, will be key to balancing the narrative, getting key messages out, and ultimately surviving. 11.
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