“Quick Insights on Congressional Investigations” is a video interview series hosted by Mayer Brown partners Michael Levy and Andrew Olmem, who unpack the nuanced complexities underlying congressional investigations and provide guidance on how companies can manage and minimize the impacts.
The series delves into the nuts-and-bolts and strategic questions surrounding congressional investigations and provides tips to protect corporate interests during these crises. Each episode is short—approximately 5 minutes—and tackles one question relating to congressional investigations.
Episode 1: Are there differences between Republicans and Democrats in congressional investigations?
Episode 2: What are the biggest mistakes made in congressional investigations?
Episode 3: What does the election mean for congressional investigations?
Episode 4: What’s the worst that can happen in a congressional investigation?
Episode 5: How do you know if you are the subject of a congressional investigation?
Episode 6: What is the scope of a congressional investigation?
Episode 7: Can the courts protect against unreasonable congressional investigators?
Episode 8: What do you do if you receive a request for information from a congressional committee?
Episode 9: How long does a congressional investigation last?
Episode 10: Does the attorney-client privilege apply in congressional investigations?
Episode 11: What makes a congressional hearing different?
Episode 12: Is a congressional subpoena enforceable?
Episode 13: What are the consequences of lying in a congressional investigation?
Episode 14: What does Maloney v. Murphy mean for congressional investigations?
Special Episode: What will the 50-50 Senate mean for congressional investigations?
Special Episode: What are the key takeaways from the GameStop congressional hearing?
Episode 15: How should you respond to a request for information from the minority party?
Episode 16: How should you handle the media in a congressional investigation?
Episode 17: Can you make a congressional investigation go away?
Episode 18: Does the 5th Amendment's protection against self-incrimination apply in congressional investigations?
Episode 19: What is the role of staffers in congressional investigations (and how should you deal with them)?
Episode 20: Can Congress investigate the same matter that a regulator is investigating?
In our first episode below, Michael and Andrew explore the key differences—and similarities—between how Republicans and Democrats conduct congressional investigations.
In our second episode, Michael and Andrew highlight mistakes they have witnessed in congressional investigations, one of the most significant being the target’s failure to take into account both the “congressional” and the “investigation” aspects of the matter.
The outcome of the US elections will change congressional committee leadership but may not change House and Senate control—depending on Georgia’s two runoff elections. In this Special Edition, Michael and Andrew talk about how they see congressional investigations proceeding over the next year and the areas in which each chamber is likely to focus.
In this episode, Michael and Andrew discuss the types of harm that can arise from a congressional investigation—focusing on those that have the most costly consequences for the target.
In this episode, Michael and Andrew address an important, basic question: How do you know if an interaction with a congressional committee signals a congressional investigation or whether it is merely a traditional legislative interaction?
The congressional authority to investigate is far-reaching, but there are three broad limits on Congress’ power. In this episode, Michael and Andrew explore these limits—constitutional, statutory and procedural—and how they work in practice.
In follow-up to our prior episode exploring the broad limits on Congress’ power to investigate, Michael and Andrew now turn their focus to when and how courts will intervene if Congress has exceeded those limits and practical considerations to keep in mind should this situation arise.
In this episode, Michael and Andrew outline next steps for a company or individual that has received a request for information from a congressional committee, emphasizing important strategic considerations and common pitfalls in early-stage interactions with committee staff members. Whenever a congressional request is received, a fundamental first question to weigh is whether it is an investigation or a typical legislative interaction. If you missed our episode exploring this question in further detail, you can view it here: How do you know if you are the subject of a congressional investigation?
In this episode, Michael and Andrew examine the factors that contribute to the expedited time frame in which most congressional investigations are conducted and, importantly, what this means for companies and individuals under investigation.
In this episode, Michael and Andrew explore whether the attorney-client privilege applies in congressional investigations, an issue that has been open-ended until a July 2020 opinion issued by the US Supreme Court in dicta.
Historically, congressional committees have tacitly acknowledged that companies and individuals are likely to assert the attorney-client privilege. This episode discusses numerous reasons why committees do not compel companies and individuals to provide privileged information, including the reality of the extremely compressed time frame in which many congressional investigations are conducted. If you missed our past episode exploring this question in further detail, you can view it here: “How long does a congressional investigation last?”
The differences between trials and congressional hearings are vast. In this episode, Michael and Andrew discuss the key differences, including the format, structure, and purpose of each and how the distinctive aspects of congressional hearings impact the preparation of witnesses.
In this episode, Michael and Andrew discuss the DC Circuit’s recent decision in Committee on the Judiciary v. McGahn, where the court was asked to decide whether a congressional subpoena is enforceable. Although a seemingly straightforward question, this issue has been litigated multiple times and remains unsettled. Michael and Andrew examine the preliminary questions addressed by the court, the current status of the case, and the practical takeaways for private companies and individuals.
In this episode, Michael and Andrew delve into the consequences of lying to Congress from a legal and practical perspective. Beyond the obvious situations that involve knowingly lying under oath while testifying at a congressional hearing, there are also legal ramifications for concealing material facts or knowingly submitting documents that contain false statements. Michael and Andrew walk through these risk areas and how to guard against them in the course of a congressional investigation.
In this episode, Michael and Andrew take a look at the DC Circuit’s recent decision in Maloney v. Murphy, in which the key issue was whether eight members of the House Oversight Committee (not a majority) had standing to bring suit against the General Services Administration to comply with an information request that the members had initiated. Michael and Andrew summarize the decision and three practical impacts on congressional investigations.
Maloney is the latest in a string of recent judicial decisions arising from congressional investigations. If you missed our episodes covering these earlier cases, you can view them here: “Does the attorney-client privilege apply in congressional investigations?” and “Is a congressional subpoena enforceable?”
In this episode, Michael and Andrew explore the fairly novel—but not entirely unprecedented—situation involving an evenly divided US Senate, and how these dynamics may impact congressional investigations going forward.
In this special episode, Michael and Andrew share their key takeaways from the first high-profile investigative hearing of the 117th Congress, conducted by the US House Committee on Financial Services: “Game Stopped? Who Wins and Who Loses When Short Sellers, Social Media, and Retail Investors Collide.”
This episode adds to Michael and Andrew’s prior analysis of the DC Circuit’s decision in Maloney v. Murphy, which explored minority party members’ authority to conduct congressional investigations. Regardless of whether the minority members have that authority, their requests for information related to a congressional investigation should be carefully evaluated. In this episode, Michael and Andrew discuss practical considerations for private parties who receive these requests. (If you missed the Maloney discussion, you can view it here.)
In this episode, Michael and Andrew share some high-level insights on how to formulate an effective media strategy during a congressional investigation.
In this episode, Michael and Andrew explore the political and legal risks of actively attempting to make a congressional investigation go away (an outcome that is rarely possible) and share strategies that may increase the chances that it will disappear on its own.
In this episode, Michael and Andrew address an important question for witnesses appearing before a congressional committee: does the 5th Amendment protection apply in congressional investigations the same way it does in Article III courts? Although witnesses may be reluctant to avail themselves of the 5th Amendment, there are some situations where the risks of publicly testifying outweigh the possible negative connotation associated with exercising the privilege. In instances where the privilege is asserted, Michael and Andrew discuss the congressional committee’s three likely responses.
In this episode, Michael and Andrew delve into one of the least understood aspects of congressional investigations: the vital role that staffers play and best practices for engaging with them to help shape investigations from the outset.
In this episode, Michael and Andrew examine the challenging situation that arises when companies or individuals face concurrent congressional and regulatory investigations. Managing multiple investigations simultaneously can introduce significant complexity because Congress and executive branch agencies conduct their investigations under different constitutional authorities, for different purposes, pursuant to different rules and procedures. This episode focuses on strategies to improve the overall outcome while managing often competing risks.