New Authorities/New Priorities: Congressional Investigations in the 116th Congress March 1, 2019 Panelists • Jennifer Barblan - Chief Republican Counsel, Oversight and Investigations, Committee on Energy and Commerce • David Brewer - Deputy Republican Staff Director, House Oversight and Reform Committee • Douglas Pasternak - Democratic Staff Director of Investigations & Oversight for the House Committee on Transportation & Infrastructure • Michael Bopp - Partner and Chair, Gibson Dunn’s Congressional Investigations Group 2 Congressional Investigations Powers Must Authorized Not a further a by the “general valid Constitution power” legislative purpose 3 Purposes of Congressional Investigations • Expose actual criminal or civil wrongdoing • Hold a company responsible for its actions • Advance a policy preference • Advance legislation • Bolster a Member’s or party’s political agenda or position 4 Congressional Investigatory Tools • Requests for information • Interviews and depositions • Hearings • Subpoenas . Generally no pre-enforcement review • Referral to Executive Branch for criminal prosecution . Congress may refer, but Executive Branch may proceed regardless of Congress’s views. Prosecute false statements to Congress, obstruction, destruction of evidence, etc. 5 Subpoena Power • Document requests usually begin with a letter and are followed by a subpoena, if necessary. • Every standing committee has the authority to issue subpoenas. This is authorized under both House and Senate rules, but the specific procedures vary by committee. • Some committees require that some minority members be present for the subpoena vote. • Subpoenas can be friendly. 6 Congressional Contempt • Although Congress does not frequently resort to its contempt power to enforce subpoenas, it generally has three sources of contempt authority. Civil Inherent Criminal (Senate, and (both House (both House if authorized and Senate) and Senate) by resolution, House) 7 Backpage.com Subpoena Timeline July 7, 2015: Senate October 1, 2015: PSI November 3, 2015: Permanent withdraws the October 23, 2015: PSI issues a Subcommittee on Backpage.com Mr. Ferrer issues a comprehensive ruling Investigations (“PSI”) subpoena, and issues response objecting to overruling Mr. issues subpoena to subpoena to CEO the subpoena. Ferrer’s objections. Backpage.com. Carl Ferrer. March 29, 2016: February 29, 2016: PSI presents a August 5, 2016: The Senate Legal Counsel March 17, 2016: The resolution directing District Court issues files petition to Senate adopts the the Senate Legal an order directing enforce subpoena resolution by a vote compliance with the with the U.S. District Counsel to bring civil of 96-0. subpoena. Court for the District action enforcing of Columbia. subpoena request. November 30, 2016: Mr. Ferrer files certificate with District Court indicating he has complied with the subpoena. The entire process took approximately 17 months. 8 Fast and Furious Subpoena Timeline October 11, 2011: The June 20, 2012: June 15, 2011: House June 28, 2012: the Committee issued a President Obama Oversight Committee House passed H. Res. subpoena for asserted executive holds a hearing on 711, citing AG Eric documents related to privilege on documents Operation Fast and Holder in contempt for Operation Fast and dated after February 4, refusal to comply with Furious. Furious. 2011. the subpoena. April 8, 2016: The November 4, 2014: August 20, 2014: Court Committee filed a DOJ produced certain ordered the DOJ to January 19, 2016: Court notice of appeal documents and review responsive ordered additional regarding claims of withheld certain records and produce documents produced. deliberative process documents on privilege any that were not and other privileges. grounds. subject to privilege. January 13, 2017: The March 7, 2018: Parties October 22, 2018: Committee filed a reach settlement Court denies motion to consent motion to hold agreement and file a vacate the August 2014 the appeal in abeyance motion to seek vacatur and January 2016 to attempt to negotiate of the August 2014 and orders to produce the a settlement. January 2015 orders. records. After more than 7 years, the litigation is still pending. 9 Congressional Investigation Defenses Committee Jurisdiction First Fourth (Legislative Amendment Amendment Purpose) Attorney- Client Fifth Privilege & Amendment Attorney Work Product 10 Committee Jurisdiction • Investigation must relate to a legislative purpose. But courts interpret “legislative purpose” broadly. • Questions must be pertinent to subject matter of inquiry. • The subject matter of an inquiry must be within the scope of jurisdiction clearly delegated to the committee by Congress. 11 Constitutional Defenses • First Amendment. Balance the interest in privacy against the need for disclosure (has never succeeded in court). • Fourth Amendment. Reasonableness varies depending upon the “nature, purposes, and scope of the inquiry.” • Overly broad demands for documents that lack congruence and proportionality to the scope of the investigation may violate protection against search and seizure, but some cases challenge this argument. • Fifth Amendment. Individuals can invoke right against self-incrimination. Corporations cannot. • Generally applies only to testimony, although in certain circumstances the privilege applies to the act of producing documents (when the documents amount to “Testimonial Communications”). • Congress can compel testimony by granting transactional immunity or use and derivative use immunity. • Choose your words carefully, so as not to waive the privilege. • In 2013, Lois Lerner invoked the privilege before the House Committee on Oversight and Reform, but also stated that she had done nothing wrong. • Chairman Darrell Issa claimed her statement waived the privilege, and Congress referred the matter to the U.S. Attorney for the District of Columbia for criminal contempt charges when Lerner refused to testify. 12 Attorney-Client Privilege • Elements of Attorney-Client Privilege: (1) communication, (2) made in confidence, (3) to an attorney, (4) by or to a client, (5) for purposes of seeking or obtaining legal advice. • Both the House and Senate have taken the position that they are not required to recognize privilege. • Committees often require that claims of privilege be logged per normal procedures applicable to civil litigation. 13 Work Product Doctrine • The Doctrine protects documents prepared in anticipation of litigation. • The protection is waived if disclosure substantially increases the opportunity for potential adversaries to obtain the information. • It is not clear whether the privilege applies to congressional investigations, but there is substantial authority that they are not “adversarial proceedings.” 14 Top Mistakes • Facts: failure to identify and verify • Corporate message: unclear or undetailed • Internal communications: understanding the risks and settling on a strategy • Context: failure to adapt to type of investigation • Care and concern: inadequate attention • Legal: preserving privilege and assessing collateral consequences • Knowing the rules: vary by committee • Big picture: anticipating what might come next 15 Lay of the Land in the 116th Congress (Senate) Commerce, Science Homeland Security Health, Education, & Transportation & Gov. Affairs Labor & Pensions Commerce, Science & Transportation Ron Johnson Gary Peters Lamar Alexander Patty Murray Roger Wicker Maria Cantwell (R-WI) (D-MI) (R-TN) (D-WA) (R-MS) (D-WA) Banking, Housing Aging Judiciary Finance & Urban Affairs Aging Lindsey Graham Diane Feinstein Charles Ron Wyden Mike Crapo Sherrod Brown Susan Collins Bob Casey (R-SC) (D-CA) Grassley (D-OR) (R-ID) (D-OH) (R-ME) (D-PA) (R-IA) 16 Lay of the Land in the 116th Congress (House) Labor and Education Veterans Affairs Appropriations Energy and Commerce Financial Services Frank Maxine Patrick Bobby Scott Virginia Foxx Mark Takano Phil Roe Rosa DeLaura Tom Cole Greg Pallone Waters McHenry (D-VA) (R-NC) (D-CA) (R-TN) (D-CT) (R-OK) Walden (D-NJ) (R-OR) (D-CA) (R-NC) Oversight & Science, Space Government Reform Homeland Security Judiciary Ways & Means & Technology Jerrold Eddie Elijah Jim Bennie Mike Doug Richard Kevin Frank Nadler Bernice Cummings Jordan Thompson Rogers Collins Neal Brady Lucas (D-NY) Johnson (D-MD) (R-OH) (D-MS) (R-AL) (R-GA) (D-MA) (R-TX) (R-OK) (D-TX) 17 Representative Democratic House Oversight Letters • Payday Lenders and Conflicts of • Counterfeit Merchandise on Internet Interest (Jan. 31, 2018) Retailers (Oct. 10, 2018 and March 7, . Maxine Waters (CA) 2018) • Sexual Harassment at Private . Franke Pallone, Jr. (NJ) Institutions and Universities (Jan. 18, • Opioid Epidemic (August 2, 2018) 2018 and Oct. 26, 2017) . Frank Pallone, Jr. (NJ) and Diana DeGette . Eddie Bernice Johnson (TX) (CO) • EPA Regulations of Glider Engines • Media Companies: Misrepresentations to (Sept. 26, 2018) the FCC (August 27, 2018) and Mergers . Eddie Bernice Johnson (TX) (April 30, 2018) • EPA Regulation of Oil and Gas . Frank Pallone, Jr. (NJ) Companies (June 27, 2018) • Staffing Levels at Nursing Homes (July 31, . Diana DeGette (CO) and Raul Grijalva 2018) (AZ) . Jan Schakowsky (IL) • Election Interference on Social Media • Airline Company Wages (June 19, 2018) Companies (Sept. 24, 2018) . Jan Schakowsky (IL) and Raul Grijalva (AZ) . Frank Pallone, Jr. (NJ) 18 Potential Committee Inquiries & Investigations House of Representatives • House Oversight & Reform . Incoming Chairman Elijah Cummings has requested pricing and cost information