Responding to a Congressional Inquiry

Developed for the Council on Foundations by Christopher J. Armstrong, Partner at Holland & Knight

Congress’s power to conduct inquiries, including information requests, the issuance of subpoenas, and public hearings has long been recognized by the courts as part of Congress’s power to legislate. To legislate in an informed way, Congress necessarily has the power to find facts. However, there are limitations on this power. Congressional committees may only investigate subjects within that committee’s jurisdiction, and in furtherance of potential legislation rather than, for instance, criminal investigations. Constitutional privileges, such as the right against self-incrimination, also apply in a congressional investigation.  

Requests for Information

Information requests are a common way for congressional committees to conduct oversight. Congressional oversight activities fall upon a spectrum of actions, including:  

• Voluntary information requests;  
• Requests for records;  
• Subpoenas for existing records, which can be enforced by a Committee and full House vote for civil or criminal contempt;  
• Voluntary requests or subpoenas for transcribed interviews; and  
• Voluntary requests or subpoenas for testimony at a public hearing.  

Nearly every authorizing committee in Congress has the authority to issue subpoenas for records or testimony, though the rules differ among committees. Most commonly, House Committees provide the power to the Chair at their sole discretion. In the Senate, it is more common for committee rules to require either the consent of the Ranking Member or a majority vote by the Committee.  

Subpoenas for records typically only follow negotiations between the Committee and the party who has received a voluntary request that they have declined to answer. Still, subpoenas against private parties are relatively rare. Whether they are issued, or enforced via a contempt vote, depend heavily on the political salience of the matter in question, the political advantage to the committee undertaking the investigation, and other factors. Most typically, these matters are resolved by negotiation or waning interest by the committee.  

Factors and Actions to Consider Upon Receiving a Request by a Congressional Committee

1. Response Team: Upon receiving a request by a congressional committee, or beforehand if you have a reasonably expectation of receiving one, the first step should be to assemble your response team. This may include senor leadership, in-house counsel, outside counsel, government relations professionals, subject matter experts, communications professionals, and information technology professionals in the case of document collection and production. The organization’s response, and any document searches or production should be conducted by counsel and with appropriate steps to protect privilege.  
2. Acknowledging Receipt: It is customary to acknowledge receipt within days of receiving a congressional request. Doing so does not commit the organization to a particular set of actions but simply acknowledges that the request was received.
3. Aligning leadership, your board, and key stakeholders: The organization’s response team should discuss and arrive on a planned course of action, whether that be to fully comply with the request, provide a limited response, or decline or fight the request. It is also worth considering informing key stakeholders, such as significant grant recipients, donors, and key partners of the request and framing it in the way that best suits the needs of the organization.  
4. Negotiation with Committee Staff: Congressional requests are often negotiable. Matters such as response deadlines, the scope of the information requested, the relevant time periods for the information requested, and other matters are commonly subject to negotiation to better provide the committee with relevant information, reduce the burden on the organization, and protect against the public disclosure of sensitive information  
5. Identify Friends: Through government relations professional, the response team, and other partners, identify members on the committee or other members of congress who may be allies. Congressional allies can provide a good source of guidance, intelligence, and other information that can be helpful in the inquiry.  
6. Manage Your Communications: Avoid letting the congressional investigators tell the whole story. The organization should communicate with staff, key stakeholders, and media to tell its own story and manage public perception of the inquiry. Realize that the investigators will also seek outside communication, so consider balancing acknowledgement of the inquiry in a way that will not conflict with any response to Congress.  
7. Document Collection and Production: Upon receipt of an information request, regardless of how the organization will approach its response, it is advisable to put in place a litigation hold on all relevant records that may be responsive to the request. Doing so prevents future claims that the organization destroyed documents relevant to the congressional inquiry and does not dictate which records will or will not be produced.  
8. Assume Produced Information and Documents will Become Public: Once information is produced to Congress, consider those records or information to be the property of the committee. No prior agreements or claims of confidentiality will protect the information from being disclosed to the media, included in a committee report, or other public release. 

Subpoena Considerations

While most committees have the power to issue subpoenas for existing records and testimony (but not the creation of new documents), their use against private parties is relatively rare. More often, they are threatened as a means to force production of responsive information. A common notion in congressional investigations is that the most powerful subpoena is one that is threatened but not issued. Given the relative rarity of congressional subpoenas against private parties, their issuance is often news-worthy and can result in negative media attention. Their issuance also requires committee time and resources, which may not always be available. Finally, once issued, enforcing a subpoena requires not only the committee’s time and resources, but that of the full House or Senate. As with other issues describe above, a threatened subpoena is also a catalyst for further negotiation.