ALM Properties, Inc.
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Don't Hunker Down
When federal prosecutors investigate a com pany, corporate executives tend to react instinctively by hunkering down. But a congressional investigation requires the exact opposite behavior, according to attorney Michael Bopp.
"Here on the outside, and when I was on the Hill, the general mind-set is, 'Let's not engage with [Capitol] Hill investigators,' " said Bopp, a former chief counsel of the Senate Committee on Homeland Security and Governmental Affairs, and now a partner at Gibson, Dunn & Crutcher. But the wiser course, he said, is to cooperate in private with committee investigations and hope that the panel will not drag you into a public hearing to ask more questions.
Bopp was speaking during a webinar on congressional investigations that aired in late January. He was joined by F. Joseph Warin, a former assistant U.S. attorney and now chair of Gibson's white-collar defense and investigations practice, and Robert Borden, general counsel of the House Committee on Oversight and Government Reform.
"We're not looking for civil or criminal liability," said Borden, an 18-year Hill veteran. "So it's useful to find out what we want. We are always open to finding an amicable solution that gets us the information we want, without threatening to get subpoenas and hold hearings." He added, "I wouldn't discourage someone from even explicitly asking, 'What can I do other than testify?' We'll have a response to that."
Among other tips, the group said that it's not smart to challenge a committee's jurisdiction. They all have wide authority, and challenges are usually fruitless and irritating to members of Congress.
Warin noted that most enforcement investigators are reluctant to talk openly about the aim of their investigations, and he asked Borden how that compares to congressional probers. "Never expect an investigator to tell you everything they know and everything they're looking for," Borden replied. But even so, he added, "very often we are open to having that dialogue."
Bopp also suggested that a corporate lawyer should "know the landscape" and pay attention to letterheads. For example, three congressmen set out to delve into health issues related to energy drinks. They sent out a "voluminous document request" on U.S. Congressnot specific committeeletterhead. But congressmen, he noted, do not have the same authority as a committee, which can subpoena a document or depose a witness. So that particular information request was strictly voluntary.
"It doesn't mean you should ignore them," Bopp hastened to add, "but know who you are dealing with and what their authority is."
Different committees have different authority as well. Some require a vote of the committee to serve a subpoena, others don't. Some have staff deposition authority, while others will not. What they have in common, Bopp noted, is that almost all committees and subcommittees have investigative units.
And those units may coordinate with each other. For example, Borden said that he knows investigators on other committees well, and "we talk to them on a fairly regular basis." It pays off, he said: "We always feel that working with another committee gives us that much more leverage, and the same goes with working across the aisle," with the other political party.
But that doesn't mean, Bopp said, that a company should assume that committees are cooperating or communicating. Borden agreed. "One of the tools you have and can use strategically is when there are multiple committees investigating the same matter," he said. "There are opportunities for you to share information that other committees may not know, and that can be to your advantage."
One subject that comes up in almost every investigation is attorney-client privilege. Borden said that the House does not recognize common law privileges and has not been inclined to formally recognize attorney-client privilege, especially when investigating a government agency: "But if someone in the private sector raises the privilege, we will always take a serious look at it, and we'll weigh what we need to find out" against the potential harm.
Warin asked how Borden's committee decides to hold a hearing rather than just take testimony privately. "There's no black-and-white guidance," Borden answered. "We have a hearing when we have a story we want to tell, usually at the end of an investigation. Or, when an investigation may need some life breathed into it, we may bring in one high-profile witness to get others" to come forward. He also explained why a committee often requests the chief executive or president of a corporation to appear at a hearing.
"You're looking for a lot of attention," he said. "Plus, we don't like to bring in someone to say, 'Oh, that's not my department.' If you have the CEO, they don't have that excuse."