The agenda for the 116th Congress is still evolving but has initially emerged with many industries and issues coming into view as likely targets of congressional oversight by committees now led by Democratic chairs. As we noted in our previous update on the potential rise in oversight, we expected and have now begun to see the investigations coming out of several key committees and covering not only Democratic-leaning issues, but also bipartisan areas impacting many industries. These industries include:
- Energy
- Financial Services
- Healthcare
- Pharmaceuticals
- Tech / Privacy Data Security
In order to prepare for and anticipate what may lie ahead when facing a congressional inquiry or investigation, we must first review what is within the reach of Congress when it comes to oversight.
The Power of House and Senate Oversight Committees
Both legally and politically, it is widely accepted that there is almost no issue or target beyond the reach House and Senate oversight committees. The federal courts have long upheld the validity of congressional oversight of the executive branch of government as a critical function of government. And congressional power to investigate is plenary, meaning Congress has enormous power through its committees and subcommittees to get information from not only the executive branch, but also private companies, institutions, and individuals to aid in its legislative functions, e.g., passing laws, overseeing government agencies, and confirming judiciary and executive branch appointees. In this exercise of power, Congress has virtually free reign over private citizens and companies.
While constitutionally protected, the practical considerations of congressional oversight and investigations are dependent on the majority party's perspective on the issues confronting the country; the political affiliation of the president; and the politics and persona of congressional leadership and committee chairs.
The results of the November 2018 election created an arguably perfect scenario for U.S. House Democrats – now in the majority and thereby in control of the House agenda – to launch an unprecedented number of committee oversight investigations. Not only is President Trump the leader of the opposing political party; he has repeatedly attempted to dismantle his Democratic predecessor's programs championed by House Democrats, such as the Affordable Care Act, reduction of carbon emissions to curb climate change, accountability for large financial institutions and safeguards following the financial crisis, sensible and comprehensive immigration reform, and strengthened protections for the diversity and civil rights of all Americans.
In addition to repeated attempts at dismantling President Obama's legislative programs and key policies, President Trump's hardline demand for a border wall and perceived favoritism toward Russia and Vladimir Putin, among other issues, have further aggravated Democrats and supplied ample ground for investigations and related political messaging. Even President Trump's cabinet selections, many of whom have faced criticism on a variety of ethical issues, have highlighted for investigators numerous issues ripe for congressional investigations. Many of the Democratic chairs began investigations into these issues as ranking members and now have the gavel and subpoena power if the administration continues to flout their requests for information.
On that note, when House Republicans held the majority and President Obama the White House, they implemented the "Issa Rule," which allowed a committee chair to unilaterally issue subpoenas without any meaningful input from the minority ranking member. The vast majority of House committees now have such power or only a cursory consult or notice requirement before issuing a subpoena. Democrats now possess that exact same power to issue unilateral subpoenas.
Members on both sides of the aisle have long held the position that there are no jurisdictional limitations on their oversight and investigations. Currently, with committee chairs occupied by veteran Democratic legislators and their staff, the congressional oversight and investigations will be deeply probing, wide ranging, and unending. In fact, the National Journal recently asked the incoming House chairs of the 18 standing committees to list their priorities. Fourteen of the 18 chairs cited "oversight and investigations" as one of their top priorities, and many have launched extensive investigations right out of the gate. For instance, in the first month, Chairman Elijah Cummings of the House Committee on Oversight and Reform (COR) already has (a) sent 51 letters to the Trump administration demanding full compliance with previous requests; (b) started a significant private sector investigation of skyrocketing drug prices in this country, demanding information and documents, and holding the first COR hearing of this Congress; (c) launched an investigation of security clearance problems at the White House asking for not only documents, but transcribed interviews; (d) scheduled several hearings to be held in February; and (e) lauded the House's passage of five bills sponsored by COR members. Needless to say, they are moving quickly, aggressively, and strategically.
While the Democrats will attempt and need to be judicious and coordinated in how they approach oversight and investigations, targets and witnesses should be aware of the overlap factor. For instance, six of the 18 committees stated that they would investigate President Trump's finances, foreign money influence at Trump properties, and tax returns. There is a fixation on the president's finances, political contributions and expenditures, and foreign and business connections. The warning signs are obvious for individuals, businesses, and corporations that contributed money to the Trump political organizations or the inaugural committee, or frequented Trump's properties, and for those individuals and institutions with direct ties to the Trump campaign and administration. If one falls into the last category, a congressional investigation and/or subpoena may have his/her name on it, particularly if the White House attempts to stonewall the House Dems in their investigative efforts.
It is also important to understand that the power of a congressional subpoena pierces attorney-client privilege and confidentiality. While counsel can make every effort to ask for confidentiality of proprietary and other sensitive information to keep it from showing up in the public record, once a committee obtains such documents or even closed-door testimony, the reality is that it is only a matter of time before the information is released or leaked in one way or another.
With the explosion of social media and media outlets competing to release "breaking news," it is also much more difficult for committees and members of Congress to contain or control sensitive documents and other information or prevent them from being surreptitiously released, or to keep hearings from devolving into a carnival atmosphere. Individuals, institutions, and corporations trying to protect their reputations in the traditional media markets must now worry about self-serving social media reports from undisclosed, unverified sources.
Venable's team of legal and political professionals are well equipped to assist targets in avoiding the landmines presented by congressional investigations and oversight. In the court of public opinion, congressional investigations can turn well-intended, innocent activities into a nightmare. If the United States Congress "invites" a business, individual, corporation, or other institution to share information with them, your personal, business, and corporate reputation is worth protecting.
Venable's bipartisan congressional investigations team has represented scores of companies, organizations, institutions, and individuals before Congress in numerous investigations. Contact any of the contributors if you have any questions, or click here to learn more.