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At the Center of a Sun Storm
When Todd Harrison left Patton Boggs in 2011 to serve as chief counsel for oversight and investigations at the House Energy and Commerce Committee, few could have guessed that the investigation he led into Solyndra would have turned into such a political firestorm.
Harrison's investigation of the now-bankrupt solar energy company, which ended in August with the publication of a report that concluded that despite warnings from staff at the U.S. Department of Energy and the Office of Management and Budget, the Obama administration pushed forward with a loan guarantee in order to highlight Solyndra as a stimulus package success story.
In October, Harrison rejoined the firm as a partner and is heading an initiative called Patton Boggs Investigations, which brings together parts of the firm's corporate, litigation, and public policy groups to better coordinate with its government investigations and litigation practice. Sibling publication Legal Times recently caught up with Harrison, who splits his time between Patton Boggs's New York and Washington offices.
What role did you end up playing in the investigation of Solyndra?
I opened up the investigation and led it. It was an interesting evolution of a congressional investigation. You get a lot of requests for investigations from other members of Congress, from all sorts of interest groups outside of Congress, so a lot of information is flowing in all the time. One of the things we started hearing about, which nobody was paying attention to at the time, was this whole green energy economy and subsidies for green energy, and the fact that a lot of these companies weren't doing well. We opened up an investigation into Solyndra, and it was a little bit of a fight. People didn't think it would be a big deal or investigation. We kept pushing for information, but we weren't getting any information back from the Department of Energy or from anybody involved. Several months later, we had to convince the committee that it was worth it to request a subpoena. It wasn't until we requested a subpoena that we started to get information back about how some of these subsidies worked and the health of some of these companies.
When Solyndra had to declare that they were going under, it broke in the press, but we were working on it already for about eight months.
How did the investigation into Solyndra differ from those you've conducted in the past?
It was very different. As a federal prosecutor, you typically do secret investigations. You are issuing subpoenas through a grand jury, which is all secret. Maybe you have undercover agents on the case. Everything is kept pretty quiet until you actually arrest people and announce charges.
With congressional investigations it's totally different. There are so many [more] factors that you have to consider. You have to know where the majority is on certain issues. You have to know where the minority is. You have to know where the members stand. You have to know where the leadership offices stand. And then the media certainly impacts things a lot as well. As a staffer on the Hill, I was trying to get the best information possible and present it in as straightforward a manner as possible to all the members of our committee. Then they were going to make decisions from there about what they were going to release to the press or where we wanted to go.
What are some best practices for attorneys or clients that are the subject of a government investigation?
There are two important rules when you are defending a company. You have to get to the heart of the matter and get all the facts as quickly as possible and as thoroughly as possible. When you are advising the board of a company or the company, you have to know the facts. When you are doing that, you need someone who has been in the prosecutor's shoes, or been on the committee or been at the agency that is investigating you. They understand those types of people.
Most of the time these days, companies do want to cooperate. But in order to make that decision, they need to determine what the facts are and what the potential liabilities are. Second, you have to have a sensitivity for the business side of things, so that when you advising your client, you are not just giving them dry legalistic advice, but you are taking into account their business from their point of view.
A version of this story originally appeared in The National Law Journal.