Congressional Investigations Law Blog

Last week, the Justice Department moved a federal court to reconsider its ruling that Scott Bloch, formerly the head of the U.S. Office of the Special Counsel, be sentenced to at least a month in jail after pleading guilty to a misdemeanor contempt charge.

The contempt charge resulted from what the Justice Department described as Bloch's "willful[] and unlawful[] withholding [of] pertinent information from" the U.S. House Committee on Oversight & Government Reform in 2008.

Bloch pleaded to a misdemeanor charge under 2 USC 192, which provides:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

The sentencing court interpreted the foregoing statutory language to require a miminimum of a month imprisonment for a misdemeanor congressional contempt charge.

Usually, the government is the one arguing for stricter and stiffer sentences. Not so here. The Justice Department is asking the court to abide by the deal struck with Bloch for probation and argues that the absence of language found in other statutes indicates that probation is permissible under the statute. For example, the Justice Department argues, other sections of U.S. Code include the following language to clarify that probation was not an option: "Notwithstanding any othe provision of law ... a court shall not place on probation any person convicted of a violation of this subsection." Such language, the Justice Department points out, is not present in 2 USC 192.

The hearing on this issue apparently is scheduled for Thursday, March 10, 2011.

In December 2010, Rep. Peter King (R-NY), the new chair of the House Committee on Homeland Security, announced in an op-ed his intention of holding hearings on "radicalization of the American Muslim community and homegrown terrorism."

Following up on a Politico story from last week, today's Washington Post ran a story on reactions from the Muslim community in Rep. King's Long Island district to his announcement of these hearings.

Such hearings are not new to Congress, as Senator Joseph I. Lieberman, Chair of the Senate Committee on Homeland Security & Governmental Affairs held nearly a dozen such hearings on "Violent Islamist Extremism and the Homegrown Terrorist Threat," between 2006 and 2009.

In hearings that could help strengthen our law enforcement, intelligence, and homeland security apparatus to protect Americans from additional harm, these congressional committees need to respect the limitations of their authority when conducting these investigations.

The legal limitations include but are not limited to respect of individual's constitutional rights, such as those protected by the First Amendment, the Fourth Amendment, and the Fifth Amendment. Care also must be paid to the crafting of the resolution authorizing the investigation, and the questions asked pursuant to it. Violating constitutional rights or exceeding the scope of the authorizing resolution could result in a legally unenforceable investigation or set of questions, See Watkins v. United States, 354 U.S. 178 (1957).

But appealing to a federal court might be more difficult than appealing to the court of opinion, which also will have a large say -- depending on the media coverage of such hearings -- on whether a Chair has overreached. Challenging the authority of a congressional subpoena is highly difficult after the Supreme Court's decision in Eastland v. U.S. Servicemen's Fund, 421 U.S. 491 (1976), which held that the Speech or Debate Clause of the Constitution bars judicial review of a congerssional subpoena, so long as the issuance of the subpoena was an act made "within the legitimate legislative sphere." In most situations, the practical upshot of Eastland is that a recipient of a subpoena would need to refuse to comply with the subpoena and submit herself to contempt proceedings before she would have an opportunity to have a federal court review the lawful enforceability vel non of the congressional subpoena.

Submitting oneself to contempt is an extraordinary step, which is why we have seen so few published decisions on the legitimacy of congressional inquiries.

For that reason, an educated, active press must play a role in questioning whether congressional inquiries are fair and lawful. If the court of public opinion does not agree with the approach a congressional investigation is taking, such a public reaction can and will have an impact on the investigation.

Yesterday, Rep. Darrell Issa (R-CA), Chairman of the House Committee on Oversight & Government Reform announced the names of the new subcommittee Chairs and Vice Chairs. They are listed below:

The Subcommittee on Federal Workforce, U.S. Postal Service and Labor Policy
Chair: Rep. Dennis Ross (FL-12)
Vice Chair: Rep. Justin Amash (MI-3)

The Subcommittee on Government Organization, Efficiency and Financial Management
Chair: Rep. Todd Platts (PA-19)
Vice Chair Rep. Connie Mack (FL-14)

The Subcommittee on Health Care, District of Columbia, Census and the National Archives
Chair: Rep. Trey Gowdy (SC-4)
Vice Chair: Dr. Paul Gosar (AZ-1)

The Subcommittee on National Security, Homeland Defense and Foreign Operations
Chair: Rep. Jason Chaffetz (UT-03)
Vice Chair: Rep. Raul Labrador (ID-1)

The Subcommittee on Regulatory Affairs, Stimulus Oversight and Government Spending
Chair: Rep. Jim Jordan (OH-04)
Vice Chair: Rep. Ann Marie Buerkle (NY-25)

The Subcommittee on TARP, Financial Services and Bailouts of Public and Private Programs
Chair: Rep. Patrick T. McHenry (NC-10)
Vice Chair: Rep. Frank Guinta (NH-1)

The Subcommittee on Technology, Information Policy, Intergovernmental Relations and Procurement Reform.
Chair: Rep. James Lankford (OK-5)
Vice Chair: Rep. Mike Kelly (PA-3)

The Washington Post today reported that at least four Members of Congress have invoked the Speech or Debate Clause of the U.S. Constitution as a legal bar to Justice Department investigations of them.

The Speech or Debate Clause is embedded within Article I, Section 6, Clause 1 of the Constitution, which provides that Members of the U.S. Senate and House "shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

The Members' recent invocation of this Clause as a defense and a tool in their fight against the Executive Branch's investigations of them likely will go to the courts. Although the issue does not directly impact congressional investigations, how courts interpret the Speech or Debate Clause could affect them as follows:

The Supreme Court ruled in Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975), that congressional subpoenas could not be successfully challenged in court, so long as the Member or congressional staff member could show that the subpoena was an activity conducted "within the legislative sphere." We will watch to see if the courts,in their effort to intepret the Speech or Debate Clause as a tool against government investigations of Members vel non, will rely on or suggest an alteration of the Eastland Court's interpretation of the Clause.

Criticizing the final report of the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, the new Chair of the House Energy & Commerce Committee, Rep. Fred Upton (R-MI), said in a press release: "Neither this nor any investigation should be used as political justification for a pre-determined agenda to limit affordable energy options for America." It will be interesting to see whether he and other committee chairmen in both the Republican-led House and the Democrat-led Senate heed Chairman Upton's maxim.

The House Energy & Commerce Committee held several hearings on the BP Deepwater Horizon Oil Spill this past summer, but did not appear to release a final report.

Today marks the first day of the congressional term. Rep. Darrell Issa (R-CA) officially becomes Chair of the House Committee on Oversight and Government Reform. As an inaugural act, he launched a new web site for the committee he chairs. The committee's new Ranking Member is Rep. Elijah Cummings (D-MD), who also launched a new web site for the minority side of the committee. The majority's web site does not differ too much from the old web site, except that the drop-down menu for "Investigations" has been replaced with a drop-down menu entitled, "Signs of a Failed Stimulus."

According to both new web sites, no hearings are scheduled, and no new investigations have been announced.

These web sites, however, are both ones to watch as investigations pick up over the course of this congressional term.

Likewise, the House Energy and Commerce Committee, under the chairmanship of Rep. Fred Upton (R-MI) launched a new web site, which has a different look from its predecessor. Gone is the useful, color-coded calendar that indicated which subcommittee was holding a particular hearing on a given day. Perhaps, the majority will re-introduce that tool when hearings are scheduled. At the moment, no hearings are scheduled, and no new investigations have been announced. Rep. Henry Waxman (D-CA) is the committee's ranking member and also has launched a new web site.

Traditionally, these two committees have been the focal point for the most amount of congressional investigation activity, and we will be tracking these web sites throughout the congressional term.

Republican House members confirmed that Rep. Fred Upton (R-MI) will chair the often active House & Energy Commerce Committee, which has conducted oversight of the energy, health care, food, drug, and telecommunications industries. In his press release today, announcing the GOP's selection of him as the committee's chair, Rep. Upton said, "the administration's rampant spending and unfettered, two-year assault on the health, energy, and telecommunications is now over." Rep. Upton, however, did not appear to have set forth an investigations agenda for his committee, which has been the locus of a number of congressional investigations and inquiries.

Rep. Upton will be replacing Rep. Henry Waxman (D-CA), who as chair of that committee and the House Committee on Oversight and Governmental Reform, long ago established himself as one of the Hill's most persistent and active congressional investigators.

This change will put a congressman from Michigan in the driver's seat of a committee that has the authority to investigate, and legislate on, matters affecting the state's Big Three auto companies, which have made significant comebacks since the financial collapse of 2008.

Rep. Upton named Rep. Joe Pitts (R-PA) as chair of the Health Subcommittee, but has not yet named the chairs of the other subcommittees.

Given the shift in political control of the House that will occur in January 2011, companies and individuals will be eager to know how congressional oversight might change. With a Republican majority in the House, Rep. Darrell Issa (R-CA) will become the Chair of the House Oversight and Government Reform Committee, which has the broadest jurisdiction of any House committee. On September 22, 2010, Mr. Issa released a Blueprint of Oversight of the Executive Branch. The "Blueprint" also foreshadows some oversight of the private sector. Oversight, to some degree will respond to news events of the day, and Mr. Issa might not follow the "Blueprint" to a tee, but it does provide some insight into what his committee might investigate.

At the October 22, 2010 FDLI panel discussion on congressional investigations, Josh Levy described unique features to congressional investigations. The first set of those features are here. The second set of those features unique to congressional investigations are:

1. The avenues for legal battles can be dark and narrow. The Speech or Debate Clause - after the Supreme Court's 1976 decision in Eastland - makes it highly difficult for a recipient of a congressional subpoena to challenge that subpoena in court short of a contempt proceeding, particularly when the recipient is not in the government. That means pharmaceutical companies, device manufacturers, and hospitals (among others) likely will be unable to challenge the legitimacy or appropriateness of a congressional subpoena in court. And risking contempt is not advice any of us are likely to render.

That said, your client undoubtedly will have obligations and confidential material that must be maintained. Committees and their staffs will not always value those obligations the way your client does, and it is incumbent on the lawyer to work out a path to protect those obligations and confidences.

For example, your clients will take their non-disclosure agreements with third parties seriously. But my experience is that congressional staff often does not. As outside counsel, you must be careful to make certain your client does not violate or breach such agreements, which may not include exceptions for congressional subpoenas. Temporizing matters with congressional staff to perfect a waiver often is necessary. Beyond that, litigation might be an option.

2. Given the narrow alleyways for legal battles, the more effective room to work with the committees and their staff is through reasonability and fairness. No Member wants to be embarrassed or come off sounding unreasonable or unfair, although many will have different thresholds and standards for each. Likewise, staff members and committee counsel will have a certain standard of reasonability and fairness that should reflect that of their employers, but does not in all cases.

As counsel, maintaining credibility with the committee staff is critical. Perceptions of what is fair and reasonable, under the circumstances, are likely to vary Member to Member, staff member to staff member, and committee to committee.

3. Investigations can linger, but they are temporary. With exceptions, congressional investigations will begin and end, but your client's litigation exposure might continue. For that reason, it is important to protect your client's privileged and confidential material. Courts are split on the extent to which attorneys must protect privileged materials before a congressional committee without waiving that privilege. Lawyers in private practice are best advised to do more rather than less to prevent a waiver.

• For example, some courts have found that producing privileged documents to a congressional committee waives the privilege, even if the most senior congressional staff members inform counsel that the Chair has rejected counsel's assertion of privilege.

• Those courts have ruled that before counsel can produce otherwise privileged material to the congressional committee and later continue to assert that privilege in other proceedings, the Committee Chair and/or the Committee as a whole must first reject counsel's assertions of privilege.

• This high standard for preserving waiver before a congressional committee should not be followed by the courts. But as a matter of practice before a congressional committee, attorneys and clients would be wise to follow this high standard.

Conclusion
As with privilege, trade secrets, and other areas of exposure for your client, you want to make sure not to panic. Even while the bright lights of Congress are turned on your client, the lights will eventually turn off, and when they do, the Congressman will have gotten his headline, but your client's other litigation will still be there. For that reason, it is important to keep your client's objectives clear and ahead of you - whether they relate to litigation exposure or other considerations.

On October 22, 2010, the Food & Drug Law Institute ("FDLI") sponsored a panel on Congressional Investigations and invited SMM partner, Joshua A. Levy, to speak. The first half of Joshua Levy's brief prepared remarks from that panel discussion are here:

In the landscape of legal proceedings, congressional investigations are unique animals. Their distinct features are important for the private practitioner and the Hill staffer to keep in mind. For example:

1. There are no clear winners and losers in congressional investigations as there can be in litigation. From the perspective of the attorney in private practice representing an individual or a corporation that has been asked to respond to a congressional committee inquiry, the aim is to do no harm to the client - or, in other unavoidable cases, to do the least amount of harm possible to the client under the circumstances.

2. The potential harms are many, in a congressional investigation. For example, at the most severe end of the spectrum, criminal investigations could result from a congressional investigation. In addition, recommendations can be made to debar a business from working with the government; shareholder value can drop; reputational harm can result from a congressional investigation; trade secrets and other proprietary information can be compromised; and privileges can be waived.

3. There are risks for the congressional committee and its members, too. On the one hand, benefits for the Members can be significant, as in the case of Senator Truman whose road to the White House arguably began with his triumphant investigation of the waste, fraud, and abuse in the nation's defense contractor spending, during the run-up to the Second World War. But the common congressional investigation often yields only a day or two of news, and even the smallest investigation can consume significant committee resources - in terms of staff, dollars, energy, and focus. There are even greater downsides - For every Senator Truman, there may be a Senator McCarthy who has lost his decency, or an Iran-Contra Committee check-mated by the superior lawyering of Brendan Sullivan and the performance of Lt. Col. Oliver North.