Congressional Investigations & Subpoena Defense
Experienced Representation for Individuals and Businesses Facing Congressional Scrutiny
Receiving a subpoena, document request, or request for testimony from a congressional committee can create serious legal, professional, and reputational concerns. Whether an individual or business is the focus of an investigation, a witness, or simply possesses information Congress wants, responding requires careful consideration of both the immediate request and its potential consequences.
Congressional investigations operate differently from traditional litigation and federal criminal investigations. Committee rules and procedures can vary, and the interests of Congress may extend well beyond determining whether a crime has occurred. Testimony, documents, and other information produced during an investigation may also create exposure outside of Congress, including potential criminal investigations, regulatory proceedings, professional discipline, civil litigation, and unwanted media attention.
Burnham & Gorokhov is an association of independent law firms consisting of Gorokhov PC and Charles Burnham PLLC. Our attorneys represent individuals and businesses involved in high-stakes congressional investigations, helping clients understand what Congress is seeking, assess potential exposure, protect their rights, negotiate with committee counsel, prepare for testimony, and develop an appropriate response strategy.
Experience Representing Clients Before Congress
Experience matters when responding to a congressional investigation. Congressional committees have their own rules and procedures, and the legal strategy must account for not only the congressional inquiry but also the possibility of parallel or subsequent proceedings.
Attorney Charles Burnham has represented multiple witnesses in congressional investigations, including individuals appearing before the House Select Committee investigating the events of January 6. His experience includes representing former government officials, attorneys, and other individuals facing politically sensitive and highly publicized investigations. Politico Magazine recognized him as a “notable attorney” for his work representing clients before the January 6th committee.
Mr. Burnham has also litigated issues involving congressional demands for documents and assertions of constitutional and other legal protections. In Eastman v. Thompson, he represented Dr. John Eastman in litigation involving a congressional committee’s efforts to obtain documents and communications and successfully protected thousands of documents from disclosure through assertions including attorney-client privilege and First Amendment protections. Thousands of documents were protected from disclosure to the committee on privilege grounds and the Court also found that several of the committee’s requests violated the First Amendment.
Mr. Burnham has also helped clients prepare for televised testimony before congressional committees.
This experience provides an important perspective when congressional scrutiny intersects with potential criminal exposure, professional discipline, constitutional rights, and significant public attention.
What to Do If You Receive a Congressional Subpoena
A congressional subpoena should never be ignored or treated like an ordinary request for information. Depending on the circumstances, Congress may seek documents, electronic communications, records, sworn deposition testimony, or testimony at a hearing.
Before responding, counsel should determine what the committee is requesting, the authority under which it is acting, the applicable committee rules, the deadline for compliance, and whether complying could create other legal risks.
An attorney experienced in congressional investigations may also communicate directly with committee counsel to clarify or negotiate the request. Depending on the circumstances, it may be possible to obtain additional time, narrow an overly burdensome document demand, establish procedures for handling sensitive information, or address legal and privilege issues before documents or testimony are provided.
Early legal representation can be particularly important because decisions made at the beginning of an investigation may affect how the matter develops later.
Representing Individuals in Congressional Investigations
Congressional investigations can place tremendous pressure on individual witnesses. Government officials and former officials, attorneys, executives, employees, political figures, and private citizens may suddenly find themselves required to produce records or answer questions concerning events that occurred months or years earlier.
Representation may involve:
- Evaluating the subpoena or request and the client’s potential exposure
- Communicating and negotiating with committee counsel
- Identifying constitutional rights and applicable privileges
- Preparing the client for a deposition, interview, or hearing
- Accompanying the client during testimony when permitted under applicable rules
- Coordinating the congressional response with related criminal, regulatory, civil, or disciplinary matters
- Advising the client concerning public statements and media attention
For witnesses facing potential personal exposure, preparing for congressional testimony requires more than anticipating the questions Congress may ask. Counsel must consider how an answer, document, or statement could affect the client in other proceedings.
Representing Businesses and Organizations
A company does not have to be the primary target of a congressional investigation to become involved.
Businesses, contractors, investors, vendors, donors, nonprofit organizations, and other entities may receive subpoenas or voluntary requests because Congress believes they possess information concerning another person, company, transaction, or event under investigation.
A congressional request may seek emails, text messages, financial records, contracts, internal communications, or testimony from executives and employees. Responding may require substantial document collection and review while also raising questions concerning privilege, confidentiality, employee representation, business relationships, and public disclosure.
Counsel can help the organization develop a coordinated response that addresses the committee’s demands while protecting the company’s legal and business interests.
Congressional Investigations Can Create Exposure Beyond Congress
One of the most important considerations in responding to a congressional investigation is understanding that the consequences may not necessarily end with the committee’s inquiry.
Information disclosed during an investigation may raise issues involving the Department of Justice or other government agencies. Depending on the circumstances, congressional scrutiny may intersect with federal or state investigations, regulatory enforcement, inspector general inquiries, professional disciplinary proceedings, civil litigation, or employment matters.
Attorneys can face particular concerns when congressional testimony or documents raise questions involving professional obligations or conduct. Charles Burnham’s practice includes both congressional investigations and attorney discipline matters, providing experience with situations in which government scrutiny may extend into professional disciplinary proceedings.
The possibility of parallel or subsequent proceedings makes it essential to consider the broader legal landscape before providing testimony or producing potentially sensitive information.
Constitutional Rights and Privileges
Congress has broad investigative and subpoena authority, but that authority is not unlimited. Depending upon the circumstances, recipients of congressional subpoenas may have constitutional, statutory, common-law, or other grounds for objecting to particular demands or testimony.
Potential issues may involve the Fifth Amendment protection against self-incrimination, First Amendment rights, attorney-client privilege, attorney work product, executive privilege, and other protections.
The availability and treatment of particular privileges in congressional proceedings can be complex and may differ from their application in ordinary litigation. Counsel should therefore evaluate privilege issues before testimony is given or documents are produced rather than attempting to address them after disclosure has occurred.
Preparing for Congressional Depositions and Testimony
Public congressional hearings attract significant attention, but important testimony may also occur through interviews or depositions outside public view.
Preparation is critical. Counsel can help a witness understand the applicable procedures, review relevant documents and prior statements, anticipate likely areas of questioning, identify subjects presenting legal concerns, and prepare to provide accurate testimony without unnecessarily creating additional exposure.
Committee procedures can place limits on what a witness’s attorney may do during questioning. For that reason, much of the work necessary to protect the witness occurs before testimony begins.
Subpoena Enforcement and Contempt
Failing to comply with a congressional subpoena can have serious consequences. Congress has several mechanisms available to seek enforcement of its subpoenas, including criminal contempt proceedings and, in appropriate circumstances, civil enforcement.
A disagreement with a committee does not necessarily mean that a recipient should simply refuse to comply. Negotiation, privilege assertions, legal objections, litigation, or other responses may be available depending upon the circumstances.
Experienced counsel can evaluate the available options and help develop a strategy that protects the client’s rights without unnecessarily increasing the risk of an enforcement proceeding.
Managing Public and Media Scrutiny
Some congressional investigations generate extensive media coverage long before any legal conclusions have been reached. For individuals and businesses caught in a high-profile inquiry, reputational concerns may therefore develop alongside the legal issues.
There is no single appropriate media strategy. In some matters, avoiding public comment may best protect the client. In others, correcting inaccurate information or responding publicly may be appropriate.
Charles Burnham has experience representing clients in nationally publicized matters and addressing the intersection between legal strategy and media attention. Any public response should be coordinated carefully with the client’s overall legal strategy.
Experienced Counsel for Congressional Investigations
A congressional investigation can move quickly and may create consequences far beyond Capitol Hill. Individuals and businesses should understand their rights, obligations, and potential exposure before producing documents, agreeing to testimony, or making strategic decisions about how to respond.
Burnham & Gorokhov represents clients facing congressional subpoenas, testimony requests, document demands, and related government investigations. Our attorneys draw upon experience in congressional investigations, federal criminal defense, constitutional litigation, attorney discipline, and high-profile government investigations to develop strategies tailored to each client’s circumstances.
If you have received a congressional subpoena, request for testimony, or other inquiry from a congressional committee, contact Burnham & Gorokhov to discuss the matter before responding.