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Congressional Subpoenas: 10 Steps to Establishing Your Defense

Receiving a congressional subpoena can be traumatic and defending your rights and livelihood before a congressional committee can be terrifying. Following these 10 steps to build your legal defense can help make this complicated process not so complicated.

Step 1: Don’t Panic

Receiving a congressional subpoena is stressful. A United States congressional committee is scrutinizing your hard work. While this is worrying, it is important to remain calm and think with a clear head. Things will be going on simultaneously and you need to be prepared. The investigation into you and your response is one thing. The other is the publicity that may come from the congressional investigation. You need to take care of both. You must protect yourself legally from the congressional investigation and economically from the publicity that can harm your reputation. 

Step 2: Understanding the Why

Your first question is probably: Why did I receive a congressional subpoena?

A congressional subpoena is being issued because a committee in either the House of Representatives or the Senate has initiated an investigation. This power of investigation, though not explicit in the U.S. Constitution, has been sanctioned by the U.S. Supreme Court and historical precedent. 

Congressional committees initiate investigations for the following reasons:

The purpose of these investigations stems from the notion that Congress needs information to legislate and that sometimes compulsion (via a congressional subpoena) is necessary to obtain that information.

If you received a congressional subpoena, then you are either the target or the witness of the congressional investigations. As a target, you are the focus of the investigation. As a witness, you are not the focus, but the congressional committee believes you are a valuable source of information that will aid it in its investigation.

Step 3: Don’t Ignore It

A congressional subpoena must be complied with. It may be tempting to ignore a congressional subpoena. You may think you can. After all, it’s not a subpoena from a court. But in the long run, ignoring a congressional subpoena can cause serious damage to yourself and your business.

Congress, like the judiciary, has tools it can use to enforce its subpoenas.

1. Criminal Prosecution – If you do not comply with a congressional subpoena, Congress can refer the case to the Department of Justice recommending criminal charges to be brought against you. If convicted, the statute calls for a fine of up to $1,000 and imprisonment up to 12 months.

2. Civil Enforcement – The congressional committee can also bring a case against you in civil court where the district court can issue an order mandating that you comply with the congressional subpoena.

3. Inherent Contempt Power -  Congress can have the sergeant in arms take you into custody and detain you for not complying with the congressional subpoena. However, this has not been done since 1935.

Therefore, ignoring the congressional subpoena is not an option. So, what do you do if you can’t ignore the subpoena? Comply with it – but get a lawyer on your side to make sure you do it right.

Step 4: Retaining a Law Firm

Never face the government alone. The members of the congressional committee are not there to protect your rights. You need a defender and protector on your side thus, you need to hire legal counsel.

Congressional investigations are complex proceedings filled with convoluted rules and procedures. You don’t have to navigate this by yourself. You’re worrying about your reputation and your business and your finances. You don’t have to worry about the investigation itself.

A defense team knows all the rules and intricacies of congressional investigations. They can guide you through the storm and make sure all laws are abided by and all rights are protected.

Step 5: Find out the scope

Your legal team will want to make sure they understand the scope of the congressional subpoena. Generally, congressional committees can investigate any topic that Congress can legislate on as long as the investigation serves a valid legislative purpose. With this, congressional committees have broad powers of investigation.

A congressional subpoena will list the documents requested by the committee and/or when to testify before the committee. Apart from that, sometimes it is not clear what the topic of the investigation is. Many times, the defense counsel will clarify and negotiate the scope of the subpoena with the congressional committee. 

This line of dialogue will be important for your counsel to establish, especially when considering privacy and privilege concerns going forward.

Step 6: Recognize the Involvement of Politics 

Everything is about politics. If you just received a congressional subpoena, know that a large part of the reason you received it was politics. The type of congressional investigations a committee pursues depends on which party has the majority.

Further, when an investigation has high media coverage, congressional members will want their constituents to see them a certain way. This will affect the way they approach your investigation, especially if they are up for re-election.

Your defense team will help to identify these political undercurrents and ensure that you do not make any blunders that would upset the committee members.  

Step 7: Any Privacy Issues

Being the subject of a congressional investigation will raise certain privacy issues. Courts have held that a subpoena cannot be ignored to prevent the disclosure of sensitive or confidential information. Further, once the congressional committee has certain papers or information, there is little to prevent it from making the information public. 

Because of this, your legal defense team will have implemented safeguards to prevent this or lessen the impact. For example, they may have conversed with the congressional committee and attempted to negotiate to keep some information private. Otherwise, they would have invented a plan to protect your interests from the malice of the media.

Step 8: Privileges

A question that may arise is whether you have privileges, such as attorney-client privilege or the work product doctrine, throughout the congressional investigation. Privileges like this are not guaranteed. Rather, it is the discretion of the congressional committee to recognize these privileges. Thus, your legal defense team will try to open a dialogue to protect these privileges. 

Step 9: Protections

Constitutional protections still apply to congressional investigations. Two important ones your legal defense will consider the utmost importance are the right to due process and the right against self-incrimination.

Conducting congressional investigations is an important power utilized by Congress every day to gather information to achieve its legislative objectives. If you’ve received a congressional subpoena, you need to contact an attorney to make sure your constitutional rights are protected. - Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

The Fifth Amendment of the United States Constitution states: “No person shall . . . be deprived of life, liberty, or property, without due process of law.” Due process is the right to fairness in legal proceedings. 

In a congressional investigation, before you testify before the committee, you have the right to know how the questions asked are relevant to the investigation against you. The Supreme Court of the United States has held that Congress cannot compel a witness to testify if the witness does not have enough information to understand the investigation and give an informed answer.

Similarly, the United States Constitution also states that: “No person . . . shall be compelled in any criminal case to be a witness against himself…”.   This right means that you do not have to answer any questions if the answer would incriminate you in a crime. Thus, during the testimony, if you feel that an answer will open you up to a criminal investigation, you can invoke your Fifth Amendment right. If you do not invoke this right, you will be deemed to have waived it.

Your defense team will study your case extensively and ask you many questions to see if there is a situation that would warrant you invoking your right against self-incrimination. And they will help you plan accordingly. Similarly, your defense team will never allow you to answer a question unless the reason for the questioning is clear. If it is not and any previous negotiations did not shed light on the investigation, your attorney will instruct you not to speak until you understand the line of questioning.

Step 10: Preparation

The last defense strategy to know is preparation. Everything that happens during a congressional investigation has a set time limit. The committee chairman and the ranking member have allotted time to give their opening statements. Every member has a certain amount of time to ask questions. You have a set time for your opening statement and a set time to answer the committee members’ questions.

Every committee is governed by its own rules and procedures. This may seem overwhelming. But your defense team will identify all the rules, including time limits, of the committee where you are under investigation. They will prepare you with answers for foreseeable questions and will help you learn tactics on how to answer and stay within the time limits. This way, the committee members will see you as a compliant witness.

Conclusion

Defense strategies like this will help you defend your reputation and livelihood before a congressional committee once they initiate congressional investigations. When you receive a congressional subpoena, get a lawyer right away and start establishing your defense.

Oberheiden P.C. © 2022 National Law Review, Volume XII, Number 125
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About this Author

Dr. Nick Oberheiden Federal Criminal Defense Attorney Oberheiden PC
Federal Criminal Defense Attorney

Dr. Nick Oberheiden focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation. He has defended clients in PPP Loan Fraud cases and COVID-19 investigations. Nick also directs internal corporate investigations and he leads defense teams in whistleblower actions, corporate defense cases, as well as cases involving national security and elected officials.

Clients from more than 45 U.S. states have hired Nick to seek effective protection against government...

888-680-1745
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