E-ALERT |Government Affairs

E-ALERT | Government Affairs

January 24, 2011

UPDATE ON CONGRESSIONAL INVESTIGATIONS IN THE 112TH CONGRESS

► SUMMARY

Congressional investigations are beginning in the new On November 5, 2010, we issued Congress, and the outlines of the congressional an e-alert on the outlook for investigations agenda for this year are coming into congressional investigations in the sharper focus. We summarize the latest new Congress. We noted that developments below, with a particular focus on the “investigations are poised to thrive plans of Rep. Darrell Issa, the new chairman of the in the new Congress as the House House Committee on Oversight and Government Republican majority focuses its Reform. We will continue to provide updates as events investigative powers on the Obama warrant. administration.” This e-alert provides an update on ► HOUSE COMMITTEE ON OVERSIGHT & congressional investigations. The GOVERNMENT REFORM November alert can be found here.

As expected, the Republican Conference selected Rep. Darrell Issa (R-Cal.) to be the chairman of the House Committee on Oversight and Government Reform. Since our initial e-alert, Chairman Issa has continued to speak openly about his planned investigative agenda, which we address in the section below.

Last week, Chairman Issa announced the Committee’s subcommittee structure with several noteworthy attributes. First, he added two new subcommittees – bringing the total to seven subcommittees. (Chairman Issa quipped last year that he wanted seven subcommittees so that he could have a hearing each day of the week.) Second, the jurisdictions of the subcommittees were shuffled and expanded. The most significant additions are a subcommittee focused on health care and a subcommittee dedicated to TARP and “bailouts.” Third, among the seven members appointed to chair the subcommittees, Chairman Issa selected three Republican freshmen. In our view, this action indicates Chairman Issa’s desire to tap into the anti-Washington sentiments that dominated the last election. As indicated in our last alert, the newest members of the Committee – 14 of the Committee’s 25 Republicans are freshmen – have the potential to influence greatly the Committee’s activities. Chairman Issa also appointed subcommittee “vice chairs,” leaning even more heavily on freshman Republican members for these new slots. The assignments were as follows:

Subcommittee on Federal Workforce, U.S. Postal Service and Labor Policy Chair: Rep. Dennis Ross (R-Fla.) Vice Chair: Rep. Justin Amash (R-Mich.)

Subcommittee on Government Organization, Efficiency and Financial Management Chair: Rep. Todd Platts (R-Pa.) Vice Chair: Rep. Connie Mack (R-Fla.)

Subcommittee on Health Care, District of Columbia, Census and the National Archives Chair: Rep. Trey Gowdy (R-S.C.) Vice Chair: Rep. Paul Gosar (R-Ariz.)

Subcommittee on National Security, Homeland Defense and Foreign Operations Chair: Rep. Jason Chaffetz (R-Utah) Vice Chair: Rep. Raul Labrador (R-Idaho)

Subcommittee on Regulatory Affairs, Stimulus Oversight and Government Spending Chair: Rep. Jim Jordan (R-Ohio) Vice Chair: Rep. Ann Marie Buerkle (R-N.Y.)

Subcommittee on TARP, Financial Services and Bailouts of Public and Private Programs Chair: Rep. Patrick T. McHenry (R-N.C.) Vice Chair: Rep. Frank Guinta (R-N.H.)

Subcommittee on Technology, Information Policy, Intergovernmental Relations and Procurement Reform Chair: Rep. James Lankford (R-Okla.) Vice Chair: Rep. Mike Kelly (R-Pa.)

Chairmen Ross, Gowdy, and Lankford are in their first terms in Congress. Among the vice chairs, all but Rep. Mack are in their first terms.

As of this writing, Issa has not announced a chief counsel for investigations. Larry Brady, the staff director, and several senior counsels have remained with the Committee. The senior counsels include Stephen Castor, who is expected to play a key role in leading investigations. The Committee’s former chief counsel for oversight and investigations, Jennifer Safavian, has moved to the Ways and Means Committee. On Ways and Means, she will have a dual role, serving as the full Committee’s general counsel and as the staff director for the Subcommittee on Oversight. With her ties to Chairman Issa and his senior staff, there may be close cooperation between these two committees. Ways and Means has not been a venue for broad congressional investigations in the past, but the appointment of Safavian as staff director for the Committee’s Oversight Subcommittee may suggest a heightened tempo of investigative activity by Ways and Means.

On the Democratic side of the Oversight & Government Reform Committee, the transition has been more tumultuous. The Democratic Steering and Policy Committee reached past outgoing chairman Rep. Edolphus Towns (D-N.Y.) and instead selected Rep. Elijah Cummings (D-Md.) to serve as the Committee’s ranking member. Although Towns had previously been expected to remain as ranking member, several Democrats on the Committee and in the leadership expressed concerns that Towns would not be an effective counterweight to Chairman Issa’s aggressive investigative agenda. Cummings is well respected by Democratic members. Indeed, some in the Democratic caucus reportedly favored Cummings to become the chairman in 2008, but Cummings was unwilling to challenge Towns. This time, it appears that Towns’ support among the leadership weakened, and when Rep. Dennis Kucinich (D-Ohio) challenged Towns for the ranking position, Towns chose to step aside and open a path for Cummings.

Cummings, a lawyer and former leader of the Maryland legislature, is known as a strong and incisive questioner in oversight hearings. In prior years, Cummings worked closely with Rep. Henry Waxman (D-Cal.) when Waxman was the ranking minority member. Cummings and Waxman served together on the Committee in the late 1990s – the last time a Republican House was aggressively investigating a Democratic President. We expect Cummings to emulate some of Waxman’s more successful strategies.

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Cummings’s desire to follow the Waxman model was highlighted by his announcement, in early January, that he was hiring David Rapallo to serve as the Democratic staff director of the Committee. Rapallo, who spent the past year in the White House, has more than a decade of experience on the Hill and formerly handled investigative matters for Waxman, ultimately as chief investigative counsel on the Committee.

On January 20, 2011, Cummings announced the ranking minority members for the Committee’s subcommittees. Reps. Stephen Lynch (D-Mass.) and John Tierney (D-Mass.) will be ranking members of the subcommittees with jurisdiction matching the panels they previously chaired – the Subcommittee on the Federal Workforce and the Subcommittee on National Security, respectively. Likewise, Rep. Dennis Kucinich will be ranking on the Subcommittee on Regulatory Affairs, which is a paired back version of the Domestic Policy Subcommittee that he formerly chaired. Former Chairman Towns will be ranking on the Subcommittee on Government Organization. Rep. Danny Davis (D-Ill.) will be ranking on the Subcommittee on Health Care; Rep. Mike Quigley (D-Ill.) will be ranking on the TARP Subcommittee; and Rep. Gerald Connolly (D-Va.) will be ranking on the Subcommittee on Technology. As of this writing, Cummings has not announced the subcommittee assignments for the remaining Democratic members on the Committee.

Chairman Issa and Ranking Member Cummings were reportedly scheduled to meet today, January 24, in advance of the Committee’s first organizing meeting tomorrow.

► REP. ISSA’S INVESTIGATIVE AGENDA

Since our November 2010 e-alert, Chairman Issa has been walking a delicate line between highlighting his preparations for investigations and avoiding criticism that he is pursuing a purely partisan agenda. For example, in early November 2010, Chairman Issa clarified an earlier statement that President Obama “has been one of the most corrupt presidents in modern times.” He said that he did not believe that the President was personally corrupt, and instead spoke about the corrupting influence of the federal money spent through the stimulus legislation.

In early December 2010, Chairman Issa sent letters to about 150 business leaders and trade associations. He asked for “assistance in identifying existing and proposed regulations that have negatively impacted job growth in your members’ industry.” In the letter, he committed the Committee to “examining existing and proposed regulations that negatively impact the economy and jobs.”

In the first week of January, Chairman Issa formally unveiled his initial investigative agenda. He outlined six topics: (1) Federal regulations and the impact on job creation (foreshadowed by the December letter to businesses); (2) Fannie Mae, Freddie Mac, and their role in the foreclosure crisis. (3) The results of the Financial Crisis Inquiry Commission and the inability to identify the origins of the crisis; (4) Corruption in Afghanistan; (5) WikiLeaks’ disclosure of classified U.S. government cables; and (6) The Food and Drug Administration and food safety.

In a series of press interviews and statements by his spokesman, Chairman Issa expanded on his plans. For the WikiLeaks investigation, he committed to calling the President’s National Security Advisor, Tom Donilon, to testify about the administration’s strategy for combating leaks.

Chairman Issa also indicated that he will call the Democratic and Republican chairs of the Financial Crisis Inquiry Commission, which promises to be a hearing with high drama. The Commission recently fractured strongly along partisan lines, with Democratic and Republican commissioners promising to issue separate reports. The Commission’s report has been repeatedly delayed past its statutory deadline. The report is now slated for release on January 27, 2011.

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On January 19, 2011, Chairman Issa announced that his first hearing will focus on the foreclosure crisis and TARP. The Committee will call Treasury Secretary Geithner and Neil Barofsky, the TARP special inspector general, to testify at the hearing, scheduled for January 26. Chairman Issa’s announcement of the hearing noted that the TARP inspector general reports have found “failures of transparency in TARP, the continued failure of the government’s Home Affordable Mortgage Program (HAMP) to alleviate foreclosures, and the Treasury Department’s deceptive public statements about the bailout of AIG.”

► RISKS FOR CORPORATIONS

In our November alert, we noted that Republican investigators were likely to use private entities, such as those receiving TARP support, “as tools to highlight perceived failures of oversight by the Obama Administration.” Chairman Issa’s initial hearing announcement bears out this risk. It is likely that the hearing will include discussions of specific companies and their activities, but the companies may not have a platform from which to respond in the hearing. Issues raised at the hearing may prompt further investigations by the Committee and its staff.

Regulated entities, recipients of Stimulus or TARP funds, and other entities connected to the issues identified in Chairman Issa’s initial agenda should work now to develop a clear understanding of areas that present potential risks for congressional investigations. That assessment should be conducted by counsel familiar with the unique challenges of congressional investigations, such as Congress’s position that it need not recognize the attorney-client privilege.

► COVINGTON & BURLING’S CONGRESSIONAL INVESTIGATIONS PRACTICE

The practitioners at Covington & Burling LLP have deep experience representing companies and individuals in congressional oversight investigations. Our clients have included many Fortune 100 and 500 companies responding to investigations before nearly every committee in Congress. We have prepared many CEOs and other senior corporate officers to testify before congressional oversight panels. We draw on the firm’s significant experience in criminal law, litigation, government relations, political law, and specific regulated industries. Our lawyers are particularly adept at balancing the risks associated with a congressional investigation, potential civil or criminal litigation, and regulatory enforcement actions. Our practitioners include veterans of the House and Senate, the White House, and numerous federal agencies, on a bipartisan basis.

If you have any questions concerning the material discussed in this client alert, please contact the following members of our congressional investigations practice: Robert Kelner 202.662.5503 [email protected] Steven Fagell 202.662.5293 [email protected] Brian Smith 202.662.5090 [email protected] This information is not intended as legal advice. Readers should seek specific legal advice before acting with regard to the subjects mentioned herein. Covington & Burling LLP, an international law firm, provides corporate, litigation and regulatory expertise to enable clients to achieve their goals. This communication is intended to bring relevant developments to our clients and other interested colleagues. Please send an email to [email protected] if you do not wish to receive future emails or electronic alerts. © 2011 Covington & Burling LLP, 1201 Pennsylvania Avenue, NW, Washington, DC 20004-2401. All rights reserved.

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