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. We observed that stability in the control of the House would likely lead to the continuation or expansion of lines of inquiry recently pursued by the investigative committees, including drug pricing, health care access, COVID response, consumer protections, and oversight of CARES Act funds.
- Immediately after Election Day, we assessed the factors that would change – and the factors that would stay the same – depending on the outcome of the presidential election. We concluded that a divided Congress and continued legislative gridlock would foster continued investigations, regardless of the presidential outcomes, because Members of Congress have found that investigations can affect policy, including by jawboning companies to implement corporate policy changes that Congress was unable to reach through legislation.
- In mid-November, we considered the election results. We noted that Democratic House Members were unlikely to be as vigorous in investigating President Biden as they were with President Trump. Instead of a reduction in investigations, however, we noted that the change in the presidency would simply change the type of investigations pursued by the Democratic House, including a likely increased focus on private sector entities. We also drew parallels between the investigations conducted after the 2008 financial crisis and the wave of investigations conducted in 2020 concerning the pandemic, the government’s response, and the use of pandemic relief funds.
- In early December, we hosted a webinar for in-house counsel that are likely to deal with congressional investigations. We providing advice on the political landscape, the strategies for responding to congressional inquiries, and the latest legal developments in enforcement of congressional subpoenas.
In the closing days of 2020, we saw several events and developments that brought greater clarity to Congress’s likely investigative agenda, targets, and priorities in 2021.
- At the end of December, Speaker Nancy Pelosi announced that the House would extend the mandate of the House Select Subcommittee on the Coronavirus Crisis, which exists as a subcommittee under the powerful House Oversight and Government Reform Committee. The Select Subcommittee will continue to be chaired by Rep. Jim Clyburn (D-S.C.), a member of the House Democratic leadership. Throughout 2020, the Subcommittee launched numerous inquiries related to the government’s pandemic response, and it engaged in high-profile inquiries targeted at recipients of CARES Act funds, both large and small. Although the Subcommittee has widely targeted its investigations on anything related to the pandemic, the Subcommittee’s hearings in 2020 tended to focus on Trump administration officials, rather than private industry. With the change to the Biden administration, we expect that subcommittee will increasingly focus its hearings, in addition to its investigations, on the private sector.
- Also in December, the House Republican conference elected Rep. Cathy McMorris Rodgers (R-Wash.) as the first woman to lead the minority members of the House Energy and Commerce Committee, which is one of the most active investigative committees in Congress, and she has indicated an interest in conducting congressional oversight of technology companies. We also expect the committee to continue to focus on oversight of COVID vaccines and the use of government funding for research, development, and distribution of the new vaccines. We anticipate that the Committee could closely scrutinize the distribution of vaccines, examine any potential injuries alleged to have been caused by the vaccines, and perhaps examine the PREP Act and the vaccine injury fund, each of which provide legal structures and protections related to vaccine development and distribution.
- In a perhaps ironic development at the end of the year, several Democratic Members of the House scored a major legal victory in a lawsuit to enforce a statute that permits any seven members of the House Oversight Committee – even without support of the full Committee – to demand information from the executive branch. The lawsuit began in 2017, when the Democratic Members were in the minority and President Trump was newly in office. Since then, of course, control of both institutions has switched. Given this change in control, the Democratic Members’ “victory” in this litigation will now provide Republican Members of Congress with a new tool to go after the Biden administration.
- The last few years have seen an unprecedented number of litigated cases regarding Congress’s ability to enforce subpoenas. With some year-end announcements, we now know that this litigation is likely to continue into 2021. In late December, the House Oversight Committee notified the D.C. Circuit Court of Appeals that it intended to renew its subpoena for President Trump’s financial records in the next Congress. As a technical matter, congressional subpoenas expire at the end of each congressional session, which occurred on January 3, 2021. The Oversight Committee’s announcement indicates that Congress will continue its investigation of President Trump into 2021, and we will almost certainly see continued litigation related to congressional subpoena enforcement.
Finally, today, in the first full legislative day of the new Congress, the House adopted its internal rules, several of which have important implications for congressional investigations.
- The new rules included several provisions related to the announcements above. For example, the rules reauthorized the Select Subcommittee on the Coronavirus Crisis. The rules also provided a one-time authorization to the chair of the Select Subcommittee and the chair of the Oversight and Reform Committee to reissue subpoenas that expired at the end of the Congress and to do so immediately, before the Committee adopts its internal subpoena rules, in an investigation concerning political interference in response to the pandemic and an investigation of the census.
- The new rules made two changes to clarify the House’s position on existing law. The rules now specifically state that the House has the authority to subpoena a current or former President, Vice President, and White House staff. The new rules also now specifically cite subpoena issuance as an example of actions that congressional leaders may take to ensure continuation of existing litigation.
- The rules extended recent practices that are important to investigations, including an extension of the authority for committees to hold remote hearings during the pandemic, and continuing the authority for committees to conduct depositions by Members or counsel.
- The new rules also expanded the scope of the disclosures required in the congressional “truth-in-testimony” form, which is required from witnesses appearing before congressional hearings. The new rules expanded the reporting requirements to include grants from foreign governments and certain fiduciary relationships, and the rules will require committees to make the disclosures available before a hearing rather than afterward. The truth-in-testimony requirement is an esoteric part of congressional practice and witnesses often struggle with the vague requirements of the rule and the questions in the form.
As always, we encourage our clients to think carefully about the congressional investigation risks they may face today and in the new congressional term.