Receipt of a congressional subpoena is a scary moment for any company. In recent years, government contractors have come under congressional scrutiny not faced by commercial contractors.
Congress, in an effort to combat fraud, waste, and abuse – or simply as an act of political theater – has called upon contractors working with federal agencies to produce documents or appear in person to defend their business practices. Such requests pose inherent risks for all companies.
Most investigations begin with a letter requesting information or testimony. While these letters often do not take the form of a subpoena, Congress is usually able to get the information it wants. Appealing to the courts will almost always prove unsuccessful if Congress can demonstrate any “legitimate” purpose for the investigation. There are tools that the investigated party can use to prevent access to certain information, such as the attorney client privilege and the Fifth Amendment privilege against self incrimination. However, Congress can take actions that limit the effectiveness of these privileges.
Unlike a typical trial, however, the purpose of a congressional investigation is not to prove guilt or liability. Instead, these investigations are about gathering information to support policy-making. As such, investigated parties may wish to appeal to the sense of fairness of the members of Congress conducting the investigation and work towards openness and mutually-beneficial compromises. Because Congressional investigations involve a mix of politics and procedures, having a good grasp of the rules and strategies involved in Congressional investigations can help a company navigate through such difficult inquiries.
For further information please contact one of Jackson Kelly’s Government Contracts attorneys.