With the new Congress, there will be an increasing number of Congressional investigations involving President Trump, his family, and his business dealings. With a Democratic Majority in the House of Representatives, giving Democratic House Committee chairs control over the oversight agenda, and corresponding subpoena power to demand in-person testimony and a broad range of documents, these investigations will be more focused and intense. See Mike Allen and Jonathan Swan, Trump White House Braces for a Caravan of Subpoenas, Axios, Nov. 7, 2018. Additionally, the recent indictments and sentencings of those within President Trump’s circle of advisers, including Michael Cohen and General Flynn, have given Congress added impetus to pursue existing and new investigations aggressively. See Colby Hamilton, Cohen’s ‘Blind Loyalty’ Leads to 3-Year Prison Term, N.Y.L.J (Dec. 12, 2018); Sharon LaFraniere and Adam Goldman, Trump Wishes Michael Flynn Good Luck Before Sentencing, N.Y. Times, Dec. 18, 2018.
Washington may seem far away from New York, but because so much of the President’s personal and business life revolves around New York, Congress’s attention will focus there. As a result, New York attorneys need to be thinking about what to do if, and when, they are contacted by Congress. The U.S. Congress, in its oversight and investigatory role, shares some commonalities with traditional litigation: Subpoenas can compel testimony and document production, they can also conduct deposition-like interviews and initiate contempt proceedings. But the similarities fade there. Most New York lawyers are not familiar with the special process of a Congressional investigation. Some will soon need to be.
First, rarely is a subpoena simply served in the traditional sense—the process usually starts with a phone call or letter (or email) from a Congressional staffer, usually one serving on a Committee’s “Professional Staff.” While Congressional “staff” or “aides” are often given short shrift in the media, they are usually experienced professionals, and have both power and influence in Washington. They should not be underestimated. Once the phone rings, the process starts. Here are some tips.
The first step is responding to the initial communication. Whatever the method of transmission, it is crucial to not disregard or ignore the message. As a general matter, it is best practice to respond promptly first by phone, and then in writing, neutrally. Be careful about taking sides or appearing obstructive. The approach should usually be one of careful, cautious cooperation. It is critical to remember that nothing is confidential with respect to Congress, and you should assume that your telephone call may be recounted to an official report, and your letter be posted on the Committee website. So speak, and write, carefully. In Washington, you will often hear about the “Washington Post Test”—meaning how would this look if it was on the front page of the Post? Apply that test to all communications.
These early communications should allow you to learn what the Committee is looking at, and for. Is your client peripheral or central? Seen as a “target” by the Committee? Is the Committee really just trying to understand background? Even at this early stage, remember—this is not a criminal proceeding. The Congress does not have to “prove” or even “allege” anything. Their ability to inquire is nearly unlimited.
In most cases, the next step should be to work with your client to initiate a litigation hold. Ensure that no documents are destroyed, including emails or other electronic documents. It should be made clear to your client that this is not the time to take any documents to the shredder; documents should be preserved so that compliance and cooperation with the Congressional Committee is as simple as possible.
You should then work with your client to develop a communications strategy. Unlike a court, Congressional filings are entirely public and a reporter will call you for comments on the subpoena. Until you, and your client, have had time to thoroughly understand the situation, remain quiet. Do not issue a dramatic public statement. If contacted by a reporter, comments should be kept neutral. Something along the lines of “we are appropriately cooperating with the U.S. Congress in the course of their investigation” is sufficient.
At this point, you should have reached out to the Committee, and hopefully have established a dialogue with one or more staffers. Congressional staff that you speak with on the phone or correspond with via email should be taken seriously. They are not the unpaid college interns that many envision when they picture Congressional staffers; many are career professionals who may in fact be running the majority of the investigation. They are not the same as a clerk in a courthouse. They have power and can make your client’s life difficult or easy. They should be treated with respect throughout the course of your interaction with Congress.
Dealing with Congress is much more an exercise in relationships, persuasion and negotiation than a normal litigation setting. Do not treat staffers or members the way you might treat a civil adversary, or even a Court. There is much less process, and much less ability to cite a rule and take a stand. It is crucial, therefore, that you work to maintain a friendly, or at least neutral and cooperative, working relationship with Congressional staffers.
After speaking with the committee, you may have a clearer idea as to the general nature of the investigation. It is again important to keep in mind, particularly at this stage, that Congress is not like a court. Every member, even within a Committee, is an independent actor and investigations involve a kaleidoscope of overlapping interests, concerns and constituents. Most notably, party affiliation may greatly impact the investigation. Find out who the members of the committee are, what their party affiliation is, what they are asking, and why. There is a complex web of alliances and interests that inform Congressional actions, and understanding the partisan nature of your investigation will help you navigate this often nebulous process.
At this point, you may want to consider adding resources to your response—usually some type of public relations firm, and perhaps counsel with experience in Congressional investigations.
Finally, by this stage, the process will likely look a bit more like traditional litigation. You should interview your client, begin to gather documents and consistently work with the staffers to move the investigation along. There are opportunities to negotiate, limit scope and reach compromise—use those opportunities. But keep in mind that unlike traditional discovery (which often is governed by a protective order, and even if it is not, is usually not made “public” in a meaningful sense), everything given to Congress should be expected to be provided to media. Keep this in mind in drafting any communication to Congress (emails or formal letters) as well as when you produce documents. Consider all dealings with Congress to be “on stage.”
As a lawyer practicing in New York, it is reasonable to expect that much of your work will be apolitical in nature. Congress, however, is not geared toward the same political neutrality as courts and judges. Taking a political position about the subject of a Congressional investigation is not a decision that should be taken lightly. The issue that is being investigated may be one that your client feels very strongly about, and ultimately, they may decide to make their position known to Congress. But the decision to do so should be considered very seriously, clients should be aware of the damage to their reputation that could result if they decide not to remain politically neutral. Make it known to your client that the stakes are high and that this is a political process.
In short, Congress is coming to New York, and New York lawyers should be ready to zealously, and effectively, represent clients in what may be an unfamiliar (and precarious) setting.
Steven Cash, counsel at Day Pitney, is former Chief Counsel to Sen. Dianne Feinstein, a former Assistant District Attorney with the New York County District Attorney’s Office, and a former Intelligence Officer with the Central Intelligence Agency. Margaret Czepiel, a student in The George Washington University Law School Class of 2020 and law clerk at the firm, assisted in the preparation of this article.