This week, the Department of Justice (DOJ) released a new memorandum from Deputy Attorney General Lisa Monaco updating its policies and procedures for criminal investigations involving Members of Congress and congressional staff.
DOJ emphasized that investigations reaching Congress are important and “sensitive matters,” and explained that the additional guidance would address the “unique challenges” specific to such investigations. For example, the guidance highlights constitutional protections and privileges afforded to Members of Congress, such as the Speech or Debate Clause of Article I of the Constitution, which provides immunity in the performance of legislative acts. Furthermore, although not expressly mentioned in the memo, DOJ is also likely to consider the risk that certain investigative activity could chill the exercise of First Amendment freedoms by voters and constituents in their speech and petition rights.
The guidelines set out in the memo are intended to strike a balance between protecting these essential rights and privileges and ensuring that investigations can continue to proceed consistent with DOJ’s overarching goal of ensuring the public’s “confidence . . . that important prosecutorial decisions will be made rationally and objectively on the merits of each case.”
Most significantly, the memorandum outlines important changes in the mechanics of how DOJ conducts investigations relating to Members of Congress and their staff, and adds new requirements that will affirmatively require local U.S. Attorney’s Offices to consult with Main Justice in all these matters. While DOJ’s Public Integrity Section (PIN) has long played a role in criminal investigations involving Congress, the memo adds “additional consultation and approval requirements” formalizing the exact situations in which prosecutors must consult with or receive approval from PIN. These new requirements reflect the Department’s view that “[a]dditional supervision and coordination” by PIN is warranted.
These additional requirements even reach investigations seeking information “associated with” Members or staff members but held by third parties (including electronically stored information). For this reason, the guidance serves as an important reminder of the general principle that even individuals and entities who are mere witnesses—rather than investigative “target[s]” or “subject[s]”—may be swept up in a sensitive DOJ inquiry.
The guidance describes two categories in which PIN must be involved: (1) those where prosecutors must consult PIN, and (2) those where PIN must approve certain prosecutorial decisions.
Investigative scenarios that require the consultation of PIN include:
- Prosecutors open a case targeting a Member of Congress (or where the Member is a subject).
- Prosecutors issue a subpoena to a Member of Congress, congressional office, or a congressional staffer (if related to their work).
- Prosecutors seek to initiate surveillance of accounts or devices related to a congressional staffer (if not related to their work).
- Prosecutors seek to interview a Member of Congress or congressional staffer (unless they are the victim of a crime, see below).
- Prosecutors bring charges in a matter where a Member of Congress is a subject or target for activities unrelated to their official role or campaign activities.
- Prosecutors resolve charges against a congressional staffer in a matter in which a Member of Congress is not a subject or target.
Prosecutorial decisions requiring approval by PIN include:
- Prosecutors issue a subpoena to a third party seeking records belonging to a Member of Congress, congressional office, or a congressional staffer (if related to their work).
- Prosecutors issue a subpoena or seek court orders asking a third party for data belonging to a Member of Congress, congressional office, or congressional staffer (if related to their work).
- Prosecutors seek to initiate surveillance of accounts or devices related to a Member of Congress, congressional office, or congressional staffer (if related to their work).
- Prosecutors direct a source or cooperating witness to have contact with a Member of Congress or congressional staffer.
- Prosecutors apply for a warrant which will seek information or property which belongs to a Member of Congress, congressional office, or congressional staffer, or covers any place where “[l]egislative [m]aterials [a]re [l]ikely [t]o [b]e [f]ound.”
- Prosecutors apply for Title III surveillance where a Member of Congress or congressional staffer’s communications may be intercepted or monitor oral communications of a Member or staffer with consent.
- Prosecutors bring charges in a matter where a Member of Congress is a subject or target for activities related to their official role or campaign activities.
- Prosecutors resolve charges in an investigation where a Member of Congress is a subject or target.
Notably, when a Member of Congress or their staff is the victim of a crime, prosecutors are not required to involve PIN, although they are encouraged to confer with PIN regarding communications with the Member or staffer. This additional guidance does not replace the general requirement that DOJ consult with their internal Office of Legislative Affairs (OLA) before contacting Congress, congressional committees, and congressional staffers.
DOJ’s new guidance raises three crucial takeaways for future DOJ investigations which involve Members of Congress, their offices, or their staff members. First, to the extent that it was uncertain before what role PIN would play in these matters, it is now clear that PIN will be heavily involved, in either a consultative or supervisory role. Put another way, any person or entity involved in a criminal investigation relating to Congress should expect to deal with prosecutors from PIN. Second, the guidance may signal that DOJ anticipates additional investigations that reach the Hill are forthcoming. Finally, third parties (such as technology and communications companies) which store data belonging to Members and their staffers should be aware of these new procedural requirements and seek legal counsel when necessary to help navigate the process.
Companies, organizations, and people which receive an inquiry related to an investigation involving Congress should ensure that they understand this new guidance as well as other applicable laws, regulations, and procedures. If you have any questions concerning the material discussed in this client alert, please contact the members of our Election & Political Law, White Collar, and Congressional Investigations practices.