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 led the committee’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 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.
The investigation soon garnered media attention and became a campaign issue, with GOP vice presidential candidate Paul Ryan referencing Solyndra in his acceptance speech at the Republican National Convention.
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.
Legal Times caught up with Harrison, who splits his time between Patton Boggs’ New York and Washington offices, last week in D.C.
Legal Times: Tell us about your beginnings as an attorney, and how you found your way to Capitol Hill.
Harrison: I started out as a trial attorney, a prosecutor in the Manhattan D.A.’s office. I tried a ton of cases, learned how to be a lawyer, prosecutor and litigator. I still love being a prosecutor and still loved doing trials, but I had done everything I wanted to do there. I moved on to the U.S. Attorney’s Office in New York and continued to do trials. At the end of those 5 1/2 years, it was time to move on to private practice. I ended up coming to Patton Boggs, mainly in their New York office doing white-collar corporate defense-type stuff. In Christmas 2010, I got a phone call while I was on vacation asking if I would agree to be the chief counsel for oversight and investigations at the House Energy and Commerce Committee. I was an out-of-the-box pick for Chairman [Fred] Upton, because I had never been on the Hill and didn’t have a political background. To his credit, he didn’t want the typical Capitol Hill person because he knew some of the investigations could get contentious. It was very fascinating. The Energy and Commerce Committee covers all the big issues: health care, energy, manufacturing and trade, telecom and environmental issues.
What role did you play in the Solyndra investigation?
I opened up the investigation and led the investigation. 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. It started to pick up a little bit of the speed. We were holding the information pretty close. A lot of times I think things leak out of an investigation. 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 from investigations I did in the past. 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 on a federal criminal investigation until you actually arrest people and announce charges. By that time you’ve already determined what the facts are and done almost all your investigation. With congressional investigations it’s totally different. There are so many [more] factors that you have to consider in a congressional investigation than in a federal criminal investigation. You have to know where the majority is on certain issues. You have to know where the minority is on certain issues. 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, with my background, 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 as a policy matter.
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 in any sort of investigation. The first one is 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. You want to get to the facts quickly and figure out what you have and that determines your path forward to dealing with the regulators or investigators. 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, if you’re doing corporate defense work 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. How can we best do this to portray the company in the proper light such that the company’s stock price doesn’t take a hit?
Any big government investigations in the works in the coming year?
I think there is going to be a lot more of it. Health care and energy are sort of the two biggest areas. Both of those fields are evolving rapidly and there are going to be a lot more regulations and investigations going on. In energy, you have the rise of natural gas. All of a sudden we have this abundance of natural gas in the United States and it’s affecting how we look at our energy sources. There has been a lot of uproar about fracking recently. We think the government is going to try in some way, shape or form to regulate fracking. There will be investigations as to whether people will be violating those regulations. There is also going to be civil litigation that goes along with this boom. Health care is obviously another area that is highly regulated. By any measure there is a huge amount of health care fraud. The estimates on Medicare fraud alone range from $60 billion to $100 billion. The administration has publicly stated many times that one way they want to drive down health care costs is by eliminating fraud from the system. To do that, they are going to have to continue to increase their enforcement and government investigations. That is going to affect everybody: insurance companies, health care companies, doctors, hospitals.
This article first appeared on The BLT: The Blog of Legal Times.