Congress is the law-making body of the federal government. It constantly makes new laws or modifies or repeals old ones in every area of federal law – from finance to foreign affairs. Congress is one of three equal branches of the federal government. Its duties and powers are enumerated in the U.S. Constitution.
However, one power not listed in the Constitution is the power to investigate. Committees of both the House of Representatives and the Senate can commence congressional investigations for the following reasons:
- Evaluate current legislation for modification
- Repeal current legislation
- Create new legislation
- Oversee federal programs
- Impeachment proceedings
- Maintain the balance of powers between the three branches of government
- Weed out political corruption
You can find yourself as the target or witness of these investigations and subpoenaed by a congressional committee to either produce documents, testify before the committee, or both.
If this occurs, you need to evaluate your options and formulate a robust and effective defense strategy. Here are five strategies you should take to protect yourself, your rights, and your reputation if you receive a congressional subpoena.
#1 – Build Your Defense Team – Get a Lawyer!
If you just received a congressional subpoena, do not go in to face the congressional committee alone. You should never go before a governmental body without making sure you have adequate representation and a solid legal defense team.
Congressional investigations can have serious consequences for you and your business. Hiring a defense attorney is instrumental in making sure you simultaneously comply with a congressional subpoena and that you and your rights are protected from any government intrusion.
-Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.
Congressional investigations are complicated proceedings. The rules that control them are not a “one size fits all” approach. Every committee in either House of Congress has its own rules and procedures. Further, politics is the driving force of congressional investigations.
A defense team with experience understands how these committees operate and will be able to adopt a defense strategy that will fight to protect your rights and reputation.
#2 - Examine the Scope of the Congressional Subpoena
Once you have secured a legal defense team, your legal team will examine the congressional subpoena to ensure that the congressional committee acted within its authority when it issued a subpoena.
A congressional subpoena is issued to order compliance with a congressional investigation. Generally, these congressional investigations are a valid exercise of Congress’s power. The reason is that the power of Congress to initiate congressional investigations is very broad. As long as the topic of the congressional investigation falls within Congress’s legislative powers, the scope of the investigation is valid. This gives congressional committees enormous power in initiating investigations into individuals, businesses, or government officials.
However, your legal defense team knows that even broad powers have their limits. The limit is that a committee can only investigate areas that legislative powers extend to. The investigation cannot trample on the powers of the executive or judicial branches. Such an intrusion would be a violation of the separation of powers.
Further, Congress is constrained in that it cannot investigate the private affairs of an individual without possessing a “valid legislative purpose.”
With these boundaries set, your defense team will examine the congressional subpoena and the underlying congressional investigation to ensure that the congressional committee did not violate your rights or encroach into the power of another branch. If they feel that the congressional committee overstepped its authority, then they will push back.
#3 – Preparation is Everything!
Next, you need to prepare for your testimony, or you need to gather the documents that the congressional committee requested. The important thing is to only give what is asked for, never more. Your defense team will consist of experienced attorneys and professionals who will go through every document to guarantee that the documents given to the congressional committee are the ones they asked for.
Preparation for testimony is even more important. Your legal defense team will coach you on how to answer questions and be wary of the clock as responses to the committee’s questions generally have time limits.
Being prepared will portray you as a credible, compliant witness, which will make the proceedings go by much smoother for you and the committee members.
#4 Inquire into the Topic of the Investigation
Don’t jump without looking where the ground is!
The Fifth Amendment’s due process clause states that “No person shall . . . be deprived of life, liberty, or property, without due process of law.” The United States Supreme Court has held that this clause requires a congressional committee to inform you of the topic of the investigation before you start to answer questions.
It is imperative that before you answer the congressional committee’s questions, you must know what the investigation is about. Thus, unless the subject matter of the investigation is clear to you and your legal defense team, you must not answer questions until clarity is given.
First, you must object on grounds of “pertinence”. The congressional committee then must clearly state the topic of the congressional inquiry and why the questions they ask are pertinent to that topic.
#5 – Know when and when not to speak
If you receive a congressional subpoena and are called to testify before Congress, you need to know when to answer questions and when to remain silent.
Remember, refusal to answer the questions of the committee can lead to charges of contempt of Congress, which can lead to civil or criminal proceedings. Therefore, you must be prepared to answer all of Congress’s questions.
However, you do not have to answer a question if you believe the answer will implicate you in a crime and, therefore, subject you to a criminal investigation and proceeding. Instead of answering the question, you will have to invoke your Fifth Amendment right – the right against self-incrimination.
Your Fifth Amendment right against self-incrimination refers to the constitutional right that no one can be coerced by the government into implicating themselves in a crime.
Your defense team will review your case and will help you understand before the hearing when and if you should invoke this right.
A competent defense strategy is the best guardian you can have when you face a congressional committee. If you have received a congressional subpoena, you need to get in contact with a defense attorney who can collaborate with you to build the best defense for your case.