With Democrats holding power in both houses of Congress and the White House, how will congressional oversight and investigations affect private industry and the Biden Administration during the 117th Congress? What should we expect if Republicans take back one or both houses of Congress in the midterm elections? What should private entities expect from congressional investigations, and what effect will recent court decisions such as Mazars have on industry? A panel of current and former congressional investigators will discuss these issues and more, as well as how recent investigations and judicial decisions will affect the structural relationship between Congress and the Executive Branch in the years ahead.
- Ashley Callen, Deputy Staff Director, House Oversight and Reform Committee
- Daniel Goshorn, Chief Investigative Counsel, U.S. Senate Committee on Finance
- Allison Murphy, Former Chief Oversight Counsel of the House Select Subcommittee on the Coronavirus Crisis, Majority Staff; Partner in the Government, Regulatory & Internal Investigations Practice Group, Kirkland & Ellis
- Christopher Armstrong, Former Chief Oversight Counsel, Senate Committee on Finance; Partner, Holland & Knight LLP
- Moderator: Michael D. Bopp, Partner, Gibson Dunn & Crutcher LLP
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.
Evelyn Hildebrand: Welcome to The Federalist Society’s virtual event. This afternoon, July 28th, we discuss the “Congressional Oversight and Investigations: New Developments and Outlook for the 117th Congress.” My name is Evelyn Hildebrand, and I’m an associate director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.
Today, we are fortunate to have with us a very distinguished panel, which we’re really pleased to welcome this afternoon. I’ll introduce our moderator, Mr. Michael Bopp, who will then introduce our panelists. Michael Bopp is a partner at Gibson, Dunn & Crutcher LLP, where he is the Chair of the Public Policy Practice Group and a member of the firm’s White Collar Defense and Investigations and Crisis Management Practice Groups.
He also chairs the firm’s Congressional Investigations Subgroup and he also chairs the firm’s Financial Markets Crisis Group, and much more could be said by way of introduction, but I will leave it at that. And we’re very pleased he’s agreed to moderate this afternoon.
After our speakers give their opening remarks, time permitting, we will try to take some audience questions. If you do have a question, please enter it into the Q&A button at the bottom of your screen, and time permitting, we’ll try to address questions. With that, thank you for being with us today. Michael, the floor is yours.
Michael D. Bopp: Thank you very much, and thanks to everyone for joining us today. I think what we’re going to try to do is make this interactive amongst us and with the audience, too. Obviously, if you have questions, as noted, please enter them into the Q&A function, and then we will try to address them.
So the format we’re going to follow today -- we have a slide deck and we’re going to go through some of the building blocks of congressional oversight and investigations and then talk about some of the real pressing and most interesting, we think, issues facing the 117th Congress within the congressional investigations.
But let me start by introducing our very distinguished panel. We’ll go in alphabetical order first. Mr. Armstrong, who is a partner at Holland & Knight, former Chief Oversight Counsel on the Senate Finance Committee under Chairman Orrin Hatch, and formerly worked for Senator Chuck Grassley, and was an oversight counsel for the House Ways and Means Committee, as well.
You’re going to hear a recurring theme here: all of us worked for many, many years up on the Hill, and two of us are still on the Hill, and the others are now out in private practice. Then, Ashley Callen—Ashley is the Deputy Staff Director at the House Oversight Reform Committee. Over the course of her 22 years in government, she has worked at the Agriculture Committee, the Science, Space, and Technology Committee, and the Judiciary Committee, and this is her second term on the Oversight Committee.
Next, we have Dan Goshorn. Dan is the Chief Investigative Counsel for Chairman Wyden of the Senate Finance Committee, with oversight jurisdiction of tax, trade, Medicare, Medicaid, and social security. Prior to becoming Chief Investigative Counsel, Dan was a senior counsel for the Finance Committee, focusing on tax and money laundering issues. This ties into his work for Chairman Carl LeVan on the Senate Permanent Subcommittee on Investigations where he also worked on international tax investigations and a comprehensive investigation of the 2008 financial crisis, which many of us remember well.
And then Allison Murphy—Allison is a partner at Kirkland & Ellis and has held positions related to congressional investigations across the government, including as counsel to the Senate Permanent Subcommittee and Investigations, Associate Counsel at the White House under President Obama, and most recently, as Chief Oversight Counsel to the House Select Subcommittee on the Coronavirus Crisis under Chairman Jim Clyburn. And she started her career at Wilmer Hale.
So, getting started, we are going to turn to the slide deck and we will take turns talking about the slides and having a conversation about them. So let’s start with slide two. Chris.
Christopher Armstrong: Thank you, Michael. So I think the most important place to start here is just with the fact that oversight or investigations are not words that actually appear in Article I at all. But at the earliest days of the Republic, it was seen as an implicit part of Article I powers. So if you look at the broad range of Article I, if it’s the power to legislate, if it’s the power of the purse, if it’s the power to organize the Executive, if it’s the power to impeach, each of those powers cannot be carried out without a power of oversight, a power to discover what’s actually happening out there, if it’s in the executive or if it’s out in the public at large.
So, you can’t do those things without having oversight. That’s why it was always seen as just a part of inherent Article I powers. A flip side to that, though, is if the power to conduct oversight investigations only exists for the purpose of carrying out those other powers, it has to be in that purpose. And so if it’s about legislation, it has to have a valid legislative purpose. Congress can’t just go out and explore things that aren’t all actually related to its other powers. And we’ll explore a bit about exactly what that means later on. But I’ll turn it over to the next slide.
Michael D. Bopp: -- Chris. Allison?
Allison Murphy: Thanks, Chris. So, as we think about all the reasons that there are congressional investigations, as Chris said, there’s significant authority for Congress to do it, so there can be a lot of different reasons that any given committee may decide to initiate an inquiry. One big one is looking at potential misconduct. I like to think about investigations, sometimes, as focused on a crisis or something that has happened, and then there’s a lot of investigations that oftentimes look at policy issues.
But if there is an event that has happened that’s been in the press, it’s been in the news, it’s had serious consequences, sometimes, there may be misconduct at the heart of that, and Congress is looking to see if there was some type of more serious wrongdoing at the heart of that.
Related to that, I was looking at accountability. Maybe there isn’t wrongdoing, but an event has happened and somebody has to say the buck stops here. One example -- when I was with the Permanent Subcommittee on Investigations was when JPMorgan Chase engaged in synthetic credit derivatives trades that led to a loss of $6 billion in its own money. They were called the whale trades because they were so big in 2012.
And the issue was who is accountable for this? Somewhere within the company, there was a reckoning about where responsibility should lie and that investigation looked at internal risk controls, but also included an external review of -- should there be external risk controls? And Congress decided that that should lead to the Volcker Rule. So that’s another reason for congressional investigations.
And then the next category is really thinking about the policy preferences or a need for legislation that an investigation can drive support for creating. Certainly, the notion of investigation that culminates in a hearing is very public and creates an event where you may have public pressure to advance a certain cause. For example, as Michael referenced at the beginning, PSI did an inquiry into the 2008 financial crisis. There was four hearings, thousands of pages of report, and all of that really led to a break in the dam of dysfunction that led to the Dodd-Frank Rule law and associated rules. And that public pressure led to breaking that log jam, certainly, as one senator credited PSI in his book.
So, sometimes Congress is looking to fill the gap and drive some energy towards accomplishing what it would like to do. And they can use that not just to create an opening, but to certainly bolster their own position or some part of their agenda. One thing I’d like to add to this slide is thinking about how -- one reason for investigations, too, can be to change executive branch conduct or conduct of a regulator. And I think that’s something we’ve seen a lot this year and we’ll probably see a lot more going on in the next couple of years, at least.
Certainly, crises like Enron, for example -- you had a lot of hearings that exposed oversight gaps and that led to, for example, at FERC, creating a huge enforcement section of 50 people, where none existed before, and now you see folks both on the Republican and Democratic side writing to, for example, the SEC, asking the SEC, in letters, what are its authorities for regulation and enforcement on cryptocurrency or saying, “Do you really have the authorities to be doing anything more on disclosure enforcement changes about ESGs?” So, I think that congressional investigations that lead towards executive branch and regulator changes are an important part of the analysis, especially for private companies looking at the horizon over the next few years.
Michael D. Bopp: Allison—and let me ask you and the whole panel—do you feel like -- or in your experience, does Congress -- congressional committees tend to take up subjects—particularly when they’re investigating private sector entities—take up subjects where they don’t feel like there’s been enough executive branch attention or is it really the opposite that the Executive Branch calls attention to an issue and then Congress decides to pick it up? What do you think, in your experience?
Allison Murphy: I think it’s both, but I’d like to hear from some other folks, too.
Daniel Goshorn: Yeah. I think both is the easy answer, but is the real one, as well. Sometimes the oversight, especially where you’re looking at particular policy issues for folks in the majority or even the minority, you’re looking at the issues of the day and those are typically directed by the administration. For more pure investigations, as Allison described—an event has happened—those don’t follow any rhyme or reason. Those are just -- that’s what’s in the news and may or not be driven by the administration, but as far as oversight of specific policy issues, I think a lot of times that’s driven by the administration.
Michael D. Bopp: Any other thoughts on that question? If not, we can…
Christopher Armstrong: No. All I would add to that is that if an oil well explosion happens, right, or airbags are exploding all of a sudden, Congress is able to act quickly in terms of oversight. And so, often that can have the effect of then driving up [inaudible 12:48] as well, I think.
Michael D. Bopp: All good points. Okay. Moving on to the next slide -- I think, Dan, you’re next.
Daniel Goshorn: Sure. So, this slide discusses some of the tools Congress uses to conduct their investigations. And I think as context to this slide, it’s important to understand that the vast majority of congressional investigations and oversight are conducted on a voluntary basis. If Congress asked questions to private parties, private companies, or the administration, they get answers, and it’s all worked out on a voluntary basis.
So with that important consideration, and the fact that, usually, the parties involved in the investigations want to be seen as cooperating, these tools are ways to shape that cooperation and make sure things proceed smoothly. Right? So, the basic tool for congressional investigators is the request for information, either an informal email from staff or a letter from a member of Congress.
Again, when we’re talking about tools that may lead to a voluntary basis -- an unwritten tool here is a press release. Is this a request for information public or non-public? Are you using pressure on the party that’s being investigated, the administration or otherwise, or are you trying to have a more fluid dialogue with the party that’s subject to the investigation?
Interviews and depositions are another important tool—particularly, the informal interview. Folks will often give their time to Congress on a voluntary basis and make sure their side of the story is heard on whatever investigation you’re looking at. These requests for information and interviews tend to roll up, and most of the time, the final product is a hearing or a report, which brings the findings to light and makes next steps for policy changes that may result from a hearing.
Subpoenas are something that you hear about more often if you’re not seeped in the everyday of congressional investigations. But again, this is a tool that is not always even used to compel cooperation. Subpoenas, in my experience, have largely been used to work around legal issues. A party wants to cooperate with a subpoena, but contractual issues—Bank Secrecy Act, etc. —makes it impossible to do so without a subpoena, and one is provided on that basis. Rarely are subpoenas issued because a party just will not cooperate—although, it does happen, and those cases are the exception that proves the rule.
And then finally, another tool is referral to Executive Branch. So, at the conclusion, generally, of any hearing, report, or an investigation, Congress may refer misconduct if it’s uncovered to the Executive Branch for prosecution, or false statements, or other misactions by the party at issue. That’s not always the case and is not necessarily a goal of any particular investigation as to come across criminal misconduct, but it does happen, and it is often an outcome of these investigations.
Michael D. Bopp: Dan, and others, how often does that happen? How often is a referral made? And do committees vary in terms of whether they make a referral public or not? I’ve seen public and non-public referrals made.
Allison Murphy: I think that you’re right, Michael. I think there is a lot of variance among different committees and how they act. And even in the format of the referral, I’ve seen some referrals that are very topline, a couple of sentences, “have a look at X, Y, Z,” and really put the onus on the executive branch to do the work on the issue, especially if an investigation’s already been done and the conclusions are pretty obvious.
I’ve seen other ones where letters go through all the reasons that they think the investigation warrants a referral and the likely conclusion. So I think there’s a -- you’re right, there is a real spectrum there, and it would be interesting to hear other folks, too, on just what proportion of the referrals that are public, how many we don’t see that are non-public.
Christopher Armstrong: Yes. So, I would just comment -- in the instances where I’ve been involved with referrals, both on the Hill and off the Hill, as already been stated, there’s a wide range. There’s everything from telling the IRS or a justice to examine this issue, and there are very specific ones about -- see, especially when it’s lying to Congress -- and that’s where I’ve -- in my time on the Hill where I interacted with referrals most often. And that’s an issue that Congress will always take a hard look at if that’s happened.
Michael D. Bopp: Yeah. And I would say -- referrals for lying to Congress often bring parties together, too. And you don’t see it that often, but when it does happen, it happens. It’s an affront to the whole Congress committee.
Christopher Armstrong: Right.
Michael D. Bopp: Okay. Let’s move to the next slide. Ashley?
Ashley Callen: Thanks, Michael. So I think, as Dan laid out nicely, usually a subpoena is not the starting point for a dialogue with any individual or entity. But sometimes I’ve seen chairman start with a subpoena, but most of the time, there’s a robust back-and-forth about a narrowing, or broadening, or targeting discussion so that Congress can get what Congress wants.
All of the chairs have authority to issue subpoenas unilaterally. I think the language is something like, “in consultation with the ranking member,” and that takes on different forms depending upon the committee. Committees also vary -- some have to vote. I think the Senate has different rules that require votes in the House. It’s usually unilateral with notice to the other side.
And in the last Congress, some chairs actually agreed to take a vote, but I don’t think we do that anymore. We don’t vote on subpoenas in the House, but that’s just a committee-to-committee practice. So you really have to be talking to staff and understand what each committee -- how they operate. And as Dan mentioned, subpoenas can be friendly to get around contractual issues—NDAs, and things like that.
Different committees make them public; sometimes they keep them private. Any time my boss has been about to authorize a subpoena, the question that we always try to ask is, “Is this something we’re willing to enforce?” And I think a few slides from now, we get into enforcement, but that’s always something that should be in the chair’s calculus when they are issuing a subpoena. I think that’s about it.
Michael D. Bopp: Thanks, Ashley. So one question is, for the panel, how do you think the 50/50 Senate, and, essentially, -- except if you’re chair of PSI -- you essentially need a republic -- either the ranking member to consent to issuing a subpoena or some Republican to cross the aisle and agree to a subpoena. How do you think that has changed investigations in the Senate, if at all?
Daniel Goshorn: Well, I’d say in a large part, in the Senate, it has -- the major oversight in investigation efforts have been conducted on a bipartisan basis and so there’s always been buy-in from the other party. And so I think it does change things a little. The majority can’t use a simple threat of, “We’ll just take this to a vote and my side will vote for it even if yours doesn’t.”
But I think, at least, in my history on the Senate, there’s been a lot of effort to investigate things, at least, if there’s, at least, some bipartisan buy-in. You can work together, agree on the facts, but maybe not the solutions after you discover those facts. So I think it changes thing a little, but overall, not much. I’m not sure our investigative agenda would be different if we had 60 seats or if we were in the minority. I think the work I’d be pursuing would be largely the same.
Christopher Armstrong: Yeah. I think that’s right, as well. I would add to that, part of the reason it hasn’t changed a whole lot is that a subpoena is almost never actually necessary, at least, nine times out of 10, And so it’s not going to have that much of an effect on what oversight happens or not. And again, I think Dan’s exactly right. Investigations, especially large ones in the Senate, tend to be often bipart, and so it has less of an impact there as well, I think.
Michael D. Bopp: Three of us on the committee, and I -- we can name names since Dan, and Allison, and myself, we all worked on PSI and other committees. And I think, as Ashley alluded to, some committees start with a letter; some committees—at least, PSI—has traditionally tended to start with a subpoena. What do you see as the strategic reasons why a committee might start with a subpoena instead of letter or vice versa?
Christopher Armstrong: So we’ll just add to that. I always like to start with a letter. I always thought the most powerful subpoena is the unissued one, right? It’s actually on the table. It’s a threat and it’s not issued. After you issue a subpoena, I think the calculus about compliance can often, actually, get worse. I always like to have it in my back pocket. Although, it’s not how I led – get out the gate with the investigation.
Daniel Goshorn: I think what’s interesting about the dynamic on PSI is the general secrecy in which the committee conducts its work. There are strong rules on PSI protecting information that’s collected unless, and until, there’s a hearing or a report that the other committees on the Senate don’t have.
So, when I was talking about tools earlier, I mentioned one of the unwritten tools is the press release, where if a company, or an entity, or the administration is not cooperating, you can use the press to create pressure for cooperation. That whole dynamic doesn’t exist on PSI.
And Chris’s comment about the threat of the unissued subpoena -- that dynamic is much different on PSI, as well, because if you issue a subpoena to a company and then the investigation goes nowhere, the company -- no one will ever know. The company doesn’t have that risk of the negative press that they would if a subpoena’s issued from another committee of Congress.
So, at least in the work I was involved in on PSI, to the extent where you -- I wouldn't say we really ever started with a subpoena, but to the extent, we did use them a little more liberally, it was largely because we’re looking at financial institutions where Bank Secrecy Act implications just – it made sense to just go to a subpoena early. And it wasn’t really necessarily adversarial. It was just, “This is what we want, and we know we’re going to need a subpoena to get it, so let’s just get this over with.” And it just is a very different dynamic on PSI verse how you would conduct investigations at another committee.
Michael D. Bopp: Any other thoughts?
Ashley Callen: Yeah. I’ll jump in real quick. I was talking to somebody today, and everything is voluntary until you issue a subpoena. So you’re hoping that people are good citizens and want to help Congress, right? Or if it’s a company, obviously, they have an interest in upholding their good reputation. But there is a case that says every citizen is obligated to assist Congress, essentially.
But not everyone knows that. And if you’re down on your luck, you may not be able to afford to hire an attorney or whatever you need to comply with voluntary requests. And so sometimes you have to move to -- you’re really just cajoling people and hoping that they want to cooperate and be responsive and helpful until you issue the subpoena. So, I think some instances you have better luck than others.
Michael D. Bopp: It certainly is a different calculus from the perspective of the recipient. Okay. Let’s talk just for a minute about Congressional contempt. There are three kinds. Inherent contempt is the one that you may have heard of, but you’ve never actually seen it used and that’s because it hasn’t been used since 1935. It’s literally finding the contemner – locking the contemner up in the Capitol or putting him under house arrest.
Criminal and civil contempt -- with respect to criminal contempt, the real issue there is it’s difficult to use because where you see contempt mostly used is when Congress ends up issuing a subpoena to an executive branch entity or person. And the thing is, for criminal contempt, you need the Department of Justice to actually bring the contempt action—the criminal action—against the party who is in contempt.
And since the Department of Justice isn’t the same political party as the executive branch official being held in contempt by Congress, and since the justice department has taken the position that it is at their discretion whether or not to bring these actions -- and you don’t see a lot of these actions brought.
Civil contempt -- something we’re going to talk about a little bit more in a little bit. There’s some interesting new case law relating to civil contempt. You see it more often. You’ve seen it at PSI -- I’ll move it to the next slide -- with backpage.com. In remarkably quick fashion, the PSI brought a contempt action or initiated a civil contempt—it’s really an enforcement proceeding—against Backpage. And in the course of 17 months, you went to issuance of the subpoena to compliance with the subpoena through a contempt process.
And I’ll just note, as well, on the next slide -- by contrast, in Fast and Furious—which I think a number of folks -- or probably folks are generally familiar with—this was both a House and a Senate investigation relating to drug running and weapons and allegations of weapons running, as well. And the issue happened to be that the House thought—the house committee, oversight reform—believed that the Department of Justice was withholding information and not complying with the subpoena.
That process, in contrast, took eight years. And to a large degree, it took so long because when you’re dealing with a government entity, that government entity has both executive privilege and the deliberative process privilege to assert, which was asserted. And you have some very bad case law from the perspective of Congress made in that case. Fortunately, it was ultimately vacated.
But this shows, I think, first and foremost, the contempt process is a difficult and cumbersome tool, but as PSI showed with Backpage, it can be used.
Let me just ask for comments from the panelists, but also, maybe we could talk a little bit about why so few subpoenas end up being enforced through the contempt process.
Christopher Armstrong: So, I’ll just hop on point one. I think the big difference here is that it was -- Backpage was a private party that had, essentially, no support on the Hill versus the Executive Branch in a split Congress with the power of the DOD behind it, and so I think that’s just part of the timeline here. And it shows us how, if Congress is actually acting as one, right—well, at least one house of it—it can act awfully quickly. Yeah. I’ll just pause there.
Ashley Callen: I think that’s right. I think Michael identified the problem. When you read these cases, courts really struggle with how to solve issues between coequal branches, and you add in executive privilege and deliberative process, which the House argues we don’t recognize, and then common-law privileges. These are all issued -- the Executive Branch tries to assert all the common-law privileges, too, oftentimes.
So, I think that’s where the courts really struggle. And I think you’re right -- when the Republicans and Democrats are speaking with one voice, I think, against a private party where they’ve checked all the boxes, there’s a valid legislative purpose, and all the boxes are checked, I think it’s much easier for the courts.
Allison Murphy: And so I think that’s the calculus that anyone on the Hill is thinking of when they consider having to go to contempt proceedings to enforce a subpoena. “Am I able to check those boxes of avoiding executive branch privileges, establishing bipartisan support, dealing with the timeframe.”
And even 17 months is a long time in the course of a congressional investigation to get the information—especially where I was recently on the House side—and then to be able to make use of it in any sort of meaningful timeframe. It’s tough to relinquish control over a big piece of your investigation to other third parties by going through this process with a potentially uncertain endgame. So, the information’s really got to be worth it, and I think, like Ashley mentioned, you really have to check a lot of boxes to get to a good result.
Michael D. Bopp: Okay. So let’s talk for a minute about congressional investigation defenses. And before we jump into the defenses themselves, let me just ask—all of you have run investigations—many, many investigations—up on the Hill. Which of these defenses do you hear from witnesses and individuals that are—and entities—being investigated? Which ones do you hear the most frequently?
Allison Murphy: I recall privilege being the most frequently invoked privileges. Not to say that I haven’t heard the others, but I think that there’s more of a framework for dealing with that than there is on legislative purpose, for example. Certainly, the Fifth Amendment, there’s a pretty clear set of pathways and forks in the road on that, but it’s not going to come up, I think, in as many, certainly, as in across the board as I think privilege has.
Ashley Callen: I have a bit of a different experience because if you haven’t worked at oversight and you’ve tried to conduct robust oversight at a different committee, -- the Oversight Committee has tools baked into the House rules that help them be aggressive in their oversight. To be specific, Rule 10 says that the Oversight Committee has plenary jurisdiction to conduct any investigation on any matter at any time. And the other committees are really relegated to their Rule 10 jurisdiction.
And if you want to get into novel areas, it makes it a little more challenging. So I have had to argue pertinence and valid legislative purpose, and that it was authorized, and I’ve had to make all those arguments to people. And then I’ve also, in one particular investigation many years ago, for a boss who’s now retired, encountered a First Amendment defense that I think was a good one.
So I’ve dealt with those, too — the purple and the orange one, and I think that -- I’m actually taking off my Capitol Hill staffer hat. I am a huge proponent of the First Amendment defense and I think we’re seeing more and more questions from Congress that really go to the heart of peoples’ First Amendment prerogatives.
Michael D. Bopp: Thanks, Ashley. Other thoughts?
Christopher Armstrong: Yeah. I’ll just add -- easily, the one here I saw most often was the attorney-client privilege and work products. And those were often just handled as routine court -- that’s almost always respected, right? I’m not trying to call it a defense, but the response I hear, and I speak every day, are issues about requests of being overbroad, or that the request timeline is actually too fast and it just takes a long time to actually collect these records, or you’re asking for X, Y, and Z, I think all you really have to have is Y. And you have that conversation. And so I think that’s a daily conversation, I think, we have in our worlds.
Daniel Goshorn: And I’ll add, too, just to close the loop here -- I’ve also had a fair amount of experience with the Fifth Amendment defenses being used. And those are—at least from my perspective on the Hill—are tricky to work through.
Certainly, if someone wants to assert a Fifth Amendment privilege, they can do that, but then you have to work through issues of when is the best time for that to happen? Are you going to let them assert their Fifth Amendment privilege in an interview and be done with it or do you want that to take place at a hearing? And then is the person properly asserting the Fifth Amendment or have they waived it through some other actions that they can possibly -- in the same statement. So that is maybe less frequent but does come up and is a very tricky one to work through.
Michael D. Bopp: It’s interesting bringing up the Fifth Amendment because that is one that you see occasionally, obviously, in the context of a hearing, and so you’re aware that someone has asserted the Fifth Amendment—Martin Shirley before your committee, Ashley—and so it’s visible.
It’s not so visible when some of these other defenses are raised and is also not really apparent, particularly when folks may not be particularly familiar with congressional investigations and approach investigations from a mindset of “Okay. It’s litigation. Why don’t we go quash the subpoena,” right? And well, you can’t because you don’t have standing to quash the subpoena. We’ll get into that in a minute.
But if it’s only -- if a contempt action -- if somebody doesn’t comply with the subpoena, it goes into contempt, you’re in a civil contempt action or a criminal contempt action, and you raise these defenses—one or more of these defenses—as a defense against a contempt action -- and just as a point of reference, the last time committee jurisdiction was used successfully to reverse a contempt conviction was 1966 in a case that went to the U.S. Supreme Court. The First Amendment has never been relied on by a court to reverse a criminal contempt conviction, nor has the Fourth Amendment.
I completely agree with what our panel has said about these. It’s not that these defenses don’t have merit, it’s that there’s no standing to raise them in the context of shutting down or trying to stop a congressional investigation until you get into a contempt proceeding.
Okay. So that leads us to Trump v. Maars. One of the real cutting-edge issues on congressional investigations -- what does the Mazars decision, and the Supreme Court decision, mean for congressional investigations? And before I open it up for comment, let me just note just to remind folks that Mazars is a shorthand for cases consolidated involving subpoenas for the president’s financial records. These subpoenas were issued to banks, to the president’s accounting firm, and the president—not the president as the president, but the entities affiliated with the president’s businesses—challenged these subpoenas.
They sought to quash the subpoenas and they did so in a way that avoided the standing problem because they did so by essentially suing or filing an action against the entity that received the subpoena. So Mazars receives a subpoena for the president’s accounting financial records, the president’s organization—the Trump organization—sued Mazars to enjoin it from producing those documents, and that’s what led to the Mazars decision.
And as the middle bullet indicates, in the majority decision -- and it was a seven-justice majority -- the Chief Justice acknowledged that Congress has the power to obtain information, but held that congressional subpoenas are valid only if they serve a valid legislative purpose not intended for law enforcement purposes. And there’s discussion in the Mazars case that suggests that going forward, there may be more scrutiny of the legislative purpose requirement that Chris talked about at the beginning of this session, which is a requirement for a congressional investigation to be authorized.
The other piece of Mazars that I think is very interesting, is that it questions -- it doesn’t question, it validates that -- in dicta, that common law privilege is applied to congressional investigations. So, interested to hear from the panel -- what practical effects -- any comments on Mazars, but what practical effects do you think Mazars might have on congressional investigations?
Christopher Armstrong: I’ll just add -- I haven’t encountered this directly yet, but I think the most likely outcome, in terms of the quote about legislative purpose, is that Congress will be a lot more cautious about actually making a record on that because I can’t imagine -- and this is, of course, only me -- I can’t imagine this Court desiring to be in the business of telling Congress what is or is not an actual legislative purpose. And so I would expect the results of that to be just -- Congress is more cautious in how it actually makes that record about its legislative intent for purposes.
Ashley Callen: Yeah. I think something we haven’t talked about -- which I think is negotiations and accommodations. There’s some D.C. Court of Appeals, I believe, cases that require the Executive Branch and the Legislative Branch to engage in negotiations and accommodations. And I think Congress, I think as a result of Mazars, has more of a duty to engage in those.
And I think one of the things I keep in the back of my mind is, “Okay. We want the information.” We have to get the information as it comes to us. We don’t get to dictate the way it comes to us necessarily. Sometimes we do, but you have to engage in that back and forth. And I think, like Chris said, we have to be documenting it and being able to support enforcement of our subpoenas. I think there’s a four-part test now articulated in the case, and I think we have to be mindful of that in working on the Hill.
Allison Murphy: I have encountered this, at least in the privilege space, but practically the way that this works out is really the accommodations process. And that has been certainly how Congress, vis-à-vis the Executive Branch, is supposed to negotiate subpoenas in order -- and it means that both parties have to talk about what their interest is and be mindful of privileges—get the information that Congress needs.
So, I don’t think it changes the day-to-day a ton because Congress has generally been fairly respectful of attorney-client privileges and does go through that accommodations process through a process of narrowing the request, and triaging, and sequencing certain buckets or not, thinking about other ways to present the information, whether it’s documents themselves or whether the information is elicited and provided in a way that’s shorn of the privileges. So it is part of the conversation, but it has not, from what, at least I’ve seen at first, made a big difference in changing the barometer on how privilege is treated.
Michael D. Bopp: All good points. Just one other aspect of Mazars -- I think this is a fascinating case and probably one of the most significant ones in the congressional and investigations area in decades. So, it also represents the first time that the Supreme Court has ruled in favor of a collateral attack on a congressional subpoena by a party seeking to enjoin compliance by the target of the subpoena.
So for example, going forward, if a congressional committee were to subpoena bank records of a company, the company could conceivably sue the bank to enjoin compliance. It obviously would have to have some basis to do so, but how much of an effect do you think this holding might have on congressional investigations?
Ashley Callen: Well, I think one thing we haven’t talked about -- these subpoenas were very broad in this case. It didn’t just ask for the president’s financial information, it asked for his 13-year-old son’s financial information, his wife, his grown children’s financial information. So it was very broad. And the basis for that was, “Oh, we need to see how other presidential families are going to navigate taxes and financial things going forward.”
And so it was very broad in this case, and so I think the Court was seeking to find a way to narrow or require Congress to be more mindful of the depth and breadth of their requests. I don’t want to say it’s had a chilling effect because that’s certainly hasn’t happened, but I do think it’s making people engage more, or document more, track and think through things a bit more.
Daniel Goshorn: I haven’t looked at this text in a little while, and so maybe I’m not remembering this exactly right, but my takeaway from Mazars was the collateral-attack issue was very fact-specific because it was the president who had a job to do of being the president. And a lot of other instances where you’re issuing a subpoena to a bank for someone else’s tax records, that argument doesn’t exist and the facts just won’t match up.
Broadly speaking, Mazars, I think, really just reaffirmed the framework or congressional oversight we’ve all been working under and carved out some very narrow -- put some very narrow limits on it, applying to just the president and just the investigation at issue, which maybe we’ll see again soon, maybe we won’t. But I think, broadly speaking, this ruling doesn’t really change a lot. It just reaffirms, for the most part, how the vast majority of congressional investigations are already conducted.
Christopher Armstrong: I think that’s largely right. The only part where I would hesitate on that is, does the dicta by the Chief Justice inspire other targets to explore those areas, like a challenge request, but it would take an extremely particular type of a target to actually do that or have that appetite.
Michael D. Bopp: All excellent comments. I do think that it’s an open issue how broad this language actually will, in practice, end up being and whether there will be private parties that try to pick on some of the themes and try to use them in congressional investigations. We’ll just have to see. I know we’re running short here. So, attorney-client privilege we’ve already talked about and work product.
So let’s talk about McGahn just for a minute or two. And just to remind folks, this was part of the impeachment inquiry. House Judiciary Committee issued a subpoena to Don McGahn, former White House Counsel, to testify. McGahn refused to appear. Committee filed suit to enforce its subpoena. District court rules committee had standing, cause of action to enforce, rejected the claim of absolute immunity. Then a panel—the D.C. Circuit—said Congress didn’t have standing to enforce. Then the en banc D.C. Circuit reverses, sends the case back to the original panel, which found that the House lacks a valid cause of action to seek judicial enforcement of subpoena.
Finally, potentially very significant decision by the en banc D.C. Circuit, by the way, authored by Tom Griffith, former Senate counsel, but then the en banc D.C. Circuit agreed to rehear the case. But prior to that, House Democrats in the Biden administration settled the case and is seeking to vacate the panel decision.
But the interesting part about this -- or there are number of interesting pieces, but is this idea that Congress hasn’t authorized the House to file suit in federal court to enforce congressional subpoenas. What do you think -- if that rationale is picked up on by other courts, how would that impact congressional investigations? Any thoughts on that one?
I think, in part -- hopefully, it’s vacated, won’t be picked up, but there has been some thinking that if the House didn’t have any effective ability to enforce the subpoenas, it would have to pass a law or a statute in order to provide standing that would have to be signed by the president. That would be a very difficult thing to do, particularly if it were the Executive Branch, once again, that were the subpoenaed party that was being held in contempt.
Christopher Armstrong: All I would add to that, Michael, is that I think it’s important to recall that the vast majority of targets of investigation don’t want the PR, right, and don’t want more letters, don’t want hearings, And so it would take such a unique circumstance to actually raise that challenge, I think, but obviously, it would be interesting to watch.
Michael D. Bopp: Let’s just talk for a minute about virtual hearings. Here to stay? Do we like them? Do we not like them? What does everyone think?
Ashley Callen: I do think it provides -- well, so on the pros -- I’ll start with a pro. I think that’s the way you’re supposed to do things. It allows people—witnesses—from all across America to not have to pay for a flight to come to D.C. to testify before Congress, right? But a big con is, it’s really not accessible to the public. We look and see how many people are watching the live stream, and it’s a fraction of what I think would be watching if people were there in person, if we had an audience, if we had press, if we had all the things that we had pre-COVID. So I hope that we can get back to that but maybe retain that element to allow people to come and testify virtually and not have to spend the money to fly to D.C.
Christopher Armstrong: I think that’s right. All I would add to that is hearings as an oversight tool were already a really, really bad oversight tool. This makes it a lot harder. And so I think in terms of actual O&I, it’s not hanging around that much longer. Hopefully, but we’ll see.
Michael D. Bopp: How about doing investigations virtually? Have you had experience trying to do depositions or even transcribed interviews? You do them, right? But has that hampered Congress’s ability to investigate?
Daniel Goshorn: I think -- yeah, doing investigations -- doing interviews and depositions virtually is very difficult. I haven’t done them in private practice, so I can’t compare the two, but I know the Senate rules regarding release of information, transmitting them to an attorney and a witness ahead of time to review and to have a copy of to do, it was just all very difficult. And we were doing interviews where someone was just scrolling the document through on WebEx and it was just silly. Yeah. It can be done, depending on the witness and what you’re trying to elicit, but doing a difficult interview on WebEx is not particularly effective.
Christopher Armstrong: Although, I think this is where Ashely’s point is actually really, really important is -- if there’s a witness who’s in L.A., or Seattle, or elsewhere, it’s a lot easier than the expense of actually traveling here. So that’s been an upside.
Michael D. Bopp: Well, I see that we’re at the end of our hour. And thank you very much. I just want to thank the panelists for an excellent conversation. Anyone have any parting words or thoughts for our audience? Okay. Well, if not, I think…
Allison Murphy: My parting word is that I’ve just been really glad to see you all. I know that it’s a really small bar with oversight and investigations and it’s been wonderful to be your colleagues at different times and see other people across the table. And we will continue to see each other very frequently, I’m sure, because this is not a huge group of people in this town that do this. So, it’s always a pleasure to engage with you all.
Daniel Goshorn: Yeah. I always love the opportunity to explain what it is I actually do to people since it’s a very small universe who innately knows it.
Ashley Callen: Yes. And thank you to folks that tuned in today.
Michael D. Bopp: And thank you for The Federalist Society for hosting us today. We really appreciate it. And as Allison said, we look forward to seeing you again in the near term.
Evelyn Hildebrand: Great. Thanks, everyone. Thanks very much, everyone for participating. I add my thanks to the thanks of The Federalist Society. And if any of our listeners have feedback or comments, we welcome comments at firstname.lastname@example.org. Thank you very much to our panelists for your time and expertise this afternoon. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.