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Congressional Investigations

Late last week, the Committee on Oversight and Accountability published the House of Representative’s “Authorization and Oversight Plans.” The massive 241-page report is required by the House rules, and the Oversight Committee’s report collects the individual oversight plans that each standing committee of the House is required to create at the start of a new Congress. The report is the most comprehensive collection of the committees’ plans for investigations in the coming Congress.

This year’s report reflects a significant shift in priorities, reflecting the change in control of the House to the Republicans. For example, the Oversight Plan speaks to expected oversight of the Administration’s alleged “collusion” with “Big Tech,” the “politicization” of the federal government, China’s interactions with the American economy and national security, and the federal government’s response to the COVID-19 pandemic and ongoing prevention efforts. A repeated priority throughout the plans is seeking out and minimizing instances of “waste, fraud, and abuse” in government programs, which includes scrutinizing the recipients and use of government funds.

The plans of the four most active oversight committees—Oversight and Accountability, Judiciary, Energy and Commerce, and Financial Services—stand out in particular for their focus on the private sector and the way companies interact with the federal government. Other committees, including the Foreign Affairs Committee, have outlined ambitious oversight agendas as well. Of note, the Foreign Affairs Committee has added a Subcommittee on Oversight and Accountability “to undertake more complex oversight and investigative activities,” including on issues related to China, the conflict in Ukraine, the United States’ withdrawal from Afghanistan, and the origins of the pandemic. The Oversight Plan does not include the oversight objectives of the newly created House Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party, which we explored in a separate alert.

The following summarizes key portions of the Oversight Plan with implications for the private sector and other individuals and entities that routinely interface with government:…

Continue Reading Newly Published “Oversight Plan” Outlines the House’s Investigative Priorities

On February 7, 2023, the House Committee on Armed Services (the “Committee”) held a hearing entitled “The Pressing Threat of the Chinese Communist Party to U.S. National Defense.” This hearing marked the Committee’s first in the 118th Congress and it focused on U.S. strategic competition with the Chinese Communist Party (“CCP”) of the People’s Republic of China (“PRC”). This overview is the first in a series of legislative updates we will provide on congressional oversight activities related to China throughout the Congress, including specific activities focused on trade controls, supply chain dependencies, and PRC-sourced telecommunications infrastructure in U.S. networks.

Admiral Harry Harris, USN (Ret.), former commander of U.S. Pacific Command, and Dr. Melanie Sisson, Foreign Policy Fellow at the Strobe Talbott Center for Security, Strategy, and Technology, appeared before the committee as witnesses. The substance and tenor of their testimony, reflected throughout the hearing from member statements, was bipartisan agreement that the PRC and the CCP pose a significant threat to the United States and its way of life.

Key members to watch this Congress, all of whom participated in the hearing, include, Representative Mike Gallagher (R-WI), HASC Member and Chairman of the House Select Committee on the Strategic Competition between the United States and the CCP, as well as Select Committee Members Rob Wittman (R-VA), Jim Banks (R-IN), Seth Moulton (D-MA), Andy Kim (D-NJ), Mikie Sherrill (D-NJ), and newly elected Carlos Gimenez (R-FL).

We expect these members will work together over the coming months to advance legislative measures in the defense authorization bill to address perceived threats posed by the CCP, particularly after its recent deployment of a surveillance balloon over the United States and military exercises near “Taiwan”.…

Continue Reading Public Policy Update:  Key Takeaways from the House Armed Services Committee Hearing on the Chinese Communist Party Threat to U.S. National Defense

The House of Representatives formally established the new “Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party,” with a bipartisan vote of 365-65. The Select Committee, to be chaired by Rep. Mike Gallagher (R-WI), a former military intelligence officer who also serves on the House Intelligence Committee, has been…

Congressional investigations thrive in divided government.  With a constrained ability to advance policy through legislation, Members are more likely to turn to investigations as a means of making headlines and affecting private sector practices. 

The Democratic Senate majority and the Republican House majority give the respective majorities the ability to control the agenda of each chamber, and likely virtually unfettered subpoena power.  Democrats will preside over all Senate committees and have control of the Senate agenda.  Likewise, Republicans will preside over all House committees and have control of the House agenda.  Rep. Kevin McCarthy (R-CA), the Republican Conference nominee for Speaker of the House, recently released a sweeping Oversight plan for “Oversight in the 118th Congress,” which is discussed below.

Congressional investigations have been on the rise generally in the past several years, and all signs indicate that investigations in the 118th Congress will be prolific and particularly challenging, especially for the companies, industries, and individuals that are a central focus of GOP critiques.  As part of these investigations, incoming House Republican committee chairs will possess virtually unchecked power to issue subpoenas, demand documents, call hearings, and compel witnesses to testify.

Congressional investigators have a large toolkit.  There are a number of ways Congress can exert pressure on companies and individuals, and this has expanded in recent years.  In the new Congress, recent developments in congressional investigations will be precedent-setting for newly empowered House GOP committees, who likely will look to the tactics and techniques that the current Democratic-led committees employed in the past few years for creative investigative ideas.  For example, many Americans watched the January 6th Select Committee hearings and that Committee’s effective use of videotaped deposition testimony.  In the future, we anticipate that more committees will use videotaped depositions, both to put additional pressure on witnesses and to generate additional headlines. …

Continue Reading Congressional Investigations in the 118th Congress

Yesterday, the House Select Committee to Investigate the January 6th Attack on the United States Capitol filed a highly consequential brief in ongoing litigation relating to a subpoena seeking documents involving attorney John Eastman’s alleged participation in efforts to thwart Congress’s certification of the results of the 2020 Presidential election.  Not surprisingly, the Select Committee’s…

Throughout recent months, we have closely monitored important developments in the courts and on Capitol Hill related to Congress’s power to issue and enforce subpoenas for documents or witness testimony.  As members of the 117th Congress continue to develop legislative and oversight priorities, a number of recent events signal continued uncertainty in congressional subpoena authority and interest in Congress in clarifying and strengthening that authority.  As discussed below, these recent developments hold significant implications for Congress’s ability to compel cooperation with their investigations.

Back to Square One in the Courts

Historically, investigators on Capitol Hill have relied on civil enforcement proceedings to enforce their subpoenas and compel the production of sought-after documents or testimony.  As we detailed in November, however, the D.C. Circuit cast doubt on the ability of investigators in the House to pursue this common avenue for enforcing its subpoenas.
Continue Reading Recent Developments Shed Further Light on Congressional Subpoena Authority

Financial institutions are consistently targets of congressional oversight interest. In the last Congress, House and Senate committees held hearings with, demanded documents from, requested interviews with, and hosted briefings from a number of bank and non-bank financial institutions regarding a variety of issues. In a recent client alert, we looked at recent trends in

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Recently, the Senate adopted a power-sharing agreement providing some contours for organizing the equally divided body.  As we have discussed previously, such agreements are very rarely needed.  The Senate has only faced a 50-50 partisan split a handful of times.  The most recent instance, in 2001, prompted the first power-sharing agreement, which served as a

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In recent months, we have highlighted key developments on Capitol Hill and discussed the implications of the change in Administration on the pace and focus of congressional investigations.  With a Democratic majority now in both the House and the Senate, investigations targeting the private sector are primed to take center stage in the new Congress.

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As the calendar turns from 2020 to 2021, we are taking stock of congressional investigations over the past two years, and assessing events in the recent weeks that help to shed light on the likely trajectory for congressional investigations in 2021.

  • In late October, we considered congressional investigations in the context of the upcoming election.

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