Congress has always had oversight of the executive branch. Lately, it seems that this oversight function has operated more frequently and with greater intensity. And the political scapegoating of career employees appears to be at an all-time high.
So what can you do if you find your federal career has become a target for a congressional investigation?
In a congressional oversight investigation, you have a right to counsel and a right to plead the Fifth Amendment if your testimony can incriminate you. Beyond that, your ability to avoid, influence or control a congressional investigation is limited and largely controlled by an awareness of the methods by which Congress conducts its inquiries. It is also helpful to know if you are likely to be a personal scapegoat for some political grandstanding or a witness as a part of an inquiry into an agency program or action. Another way of looking at this is: Does the committee view your testimony as helpful, or is it out to get you?
Congressional investigations are often about making political points and not about determining truth or justice. In responding, do not expect fairness or reasonableness.
One of the methods Congress uses is a deposition where the witness appears “voluntarily.” The voluntary appearance sometimes occurs because of the threat of a subpoena. The advantage of the deposition is that it occurs somewhat informally and privately, although what is said is a matter of record. The questioning is usually done by congressional staff, not necessarily by members of Congress. Representatives from both parties conduct the questioning, which is transcribed and occurs under oath. The deposition avoids, at least for a time, the glare of the cameras that accompany a congressional hearing.
If you are asked to appear for a deposition under threat of subpoena, consider whether your agency management has your back. This is important because of the right to counsel. Sometimes your agency will be happy to have its attorney sit in the deposition and advise you.
If this happens, remember that the agency lawyer represents the agency. If you are less than comfortable, you are entitled to your own counsel at your own expense, but you cannot have both your personal lawyer and the agency lawyer in the same deposition.
It can be an awkward position for a potential scapegoat on a political issue, particularly those issues with high media visibility. Care and independent advice is most necessary if you think your agency may abandon you. It is worth at least a small investment for independent advice when you face a fact-finding deposition.
A less formal method of oversight is a simple fact-finding meeting with staff members of one or both political parties. Often, these informal meetings might occur through an agency’s legislative affairs office. In fact, you will probably first hear about congressional interest from legislative affairs. Ask many questions. Find out who in Congress cares about the issue. Learn whether your agency’s inspector general has investigated the matter.
The advantage of the informal meeting is that you can have your own lawyer there and agency representatives can also be present. This is more of an advantage if you and the agency are largely on the same page. Again, you need to make this assessment and determine if you should hire your own counsel, who also can make some of the informal inquiries that might satisfy Congress.
The most formal oversight is the hearing. That occurs in public with media. If you are not part of an agency team and you are asked or subpoenaed to testify at a hearing, you definitely want your own lawyer. You have the right to submit written testimony, but whether you do so should be discussed with counsel.
If there is any way to avoid being a witness at a hostile hearing, pursue it. Resigning your employment is not enough to avoid the reach of Congress. A subpoena can be issued to private citizens, as well as to federal employees.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
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