October 3, 2022

Volume XII, Number 276

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October 03, 2022

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What To Do When You Receive a Congressional Subpoena

The government has questions for you. They want documents from you. They want to speak to you in person – under oath!  Though it may seem so, your world is not ending. However, receiving a congressional subpoena can be stressful and intimidating. 

It is important to know that congressional subpoenas and their respective congressional investigations are controlled by rules. These rules can:

  • Set out the procedure of a congressional investigation

  • Set out the scope of the congressional subpoena

  • Determine whether congressional subpoena or congressional investigation exceeds the authority of Congress

If you have received a congressional subpoena, protecting your rights is tantamount. Read on to find out how.

Who? What? When? Where? Why? – Understanding Congressional Subpoenas

A subpoena is an order legally obligating the recipient to either produce specified documentation or testify. Typical documentation asked for includes:

  • Financial records and bank statements

  • Employee records

  • Records and notes of business meetings

Normally, these orders are issued by a judicial body. However, Congress also has the power to issue subpoenas. They are called congressional subpoenas.

Though not an enumerated power in the United States Constitution, it is widely accepted that Congress has the power to issue subpoenas pursuant of a congressional investigation. Both Houses of Congress can issue congressional subpoenas during their investigations. Further, each committee and subcommittee of both the House of Representatives and the Senate can issue a subpoena. 

A congressional subpoena will state where the documents are to be brought and when they are due. Similarly, the subpoena will state where and when the hearing will take place.

The purpose of a congressional subpoena is to give information. It has long been recognized that Congress does not have all the answers and all the information it needs to exercise its duties. A congressional investigation allows Congress to gather the information it needs.

Building Your Defense Team – Hire an Attorney 

A legal counsel and a defense team will be your anchor and lighthouse throughout the congressional investigation. It will guide and protect you from the political chaos of Congress. A defense team has many ways it can help you.

  • Your attorney will review your subpoena and make sure the congressional committee who issued it did not overstep its authority.

  • Review the case in question with you to get a complete understanding of the situation from you.

  • Your defense team will be able to review the case to see if any of your rights will be implicated during compliance with the subpoena, such as the Fifth Amendment right against self-incrimination.

  • Your attorney can help to manage any negative publicity received from the subpoena and can help to mitigate any damage to you or your company’s reputation.

  • Your attorney will help you gather and produce any requested documentation.

  • Your attorney will coach you in preparing your statement and answers to questions.

Obedience & Scope of Congressional Investigations 

Congress has broad power to initiate congressional investigations and subpoenas issued under them. Generally, Congress can exercise its investigatory powers as long as the topic resides within Congress’s legislative powers; serves a “legislative purpose; and does not infringe on the powers of the other branches of government.

The purposes of congressional investigations range from oversight duties, overseeing federal programs and agencies, and gathering information to make new laws or repeal or modify old laws. Other purposes include uncovering wrongdoings and exposing political corruption.

One of the worst things to do after receiving a congressional subpoena is to ignore it. Noncompliance with a congressional subpoena can result in legal action against you. Congress can hold you in criminal contempt or petition a court for civil enforcement of the subpoena. The former opens the possibility of a conviction of a misdemeanor with up to a $1,000 fine and up to 12 months in prison. The latter can result in an order from a court, mandating that you comply with the subpoena. Both options are devastating for you legally and economically for your reputation

“Not complying with congressional subpoenas can cause extensive harm to both you and your business. If you receive a congressional subpoena, it is imperative to retain legal advice. A defense team has the experience needed to challenge the subpoena’s scope if need be. But there are rules and channels to follow for this. Therefore, your first step after receiving a congressional subpoena is to retain a lawyer.”

-Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

Prepare, Produce, and Testify – What to Expect when Complying with the Investigation

Your defense attorney will prepare you for what’s coming. They will help you gather any documentation required in the subpoena. The subpoena must be complied with by turning over all the requested documents. It is equally imperative that you do not turn over any documents that are not required by congress. Never give more than necessary.

If the subpoena requires you to testify before Congress, your defense team will prep you on every minute detail on how you will deliver your testimony. There are important points to remember:

The Speaker

This is not a criminal trial where your defense attorney speaks on your behalf. This is a congressional investigation. If the congressional committee wants testimony, the only one it wants to hear from is you. While your lawyer will be next to you, you will be the one doing all the talking.

Your defense team will aid you in the preparation of your opening statement and answers to anticipated questions.

The Procedure

Every committee and subcommittee of both Houses of Congress have their own rules. The chair of the committee or subcommittee gives an opening statement along with the ranking minority leader. You, the witness, will also be allowed to give your opening statement.

Afterward, the questioning starts. Each committee member will have their chance to ask you their questions and you will answer each question. 

Time

Every opportunity to speak is timed. Your attorney will know these rules and will make sure, for example, your opening statement does not go beyond the allotted time.

Conclusion 

Congressional investigations are a mechanism Congress can use to gather information needed to complete its duties. A congressional subpoena asks you to produce documents, to testify, or both before Congress because it believes you have pertinent information.

While it is important to stay calm, you must know that this is serious and can have the potential to be problematic for you and your business. Your defense team will help to mitigate any damage and will act to protect your rights.

Oberheiden P.C. © 2022 National Law Review, Volume XII, Number 90
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About this Author

Nick Oberheiden 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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