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.
Congressional Investigations
Congressional Investigations: Recent Events Bring Greater Clarity to Expectations for 2021
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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D.C. Circuit’s McGahn Ruling Eliminates Key House Option for Subpoena Enforcement
On Monday, August 31, a panel of the U.S. Court of Appeals for the D.C. Circuit upended more than a decade of district court precedent and deprived—at least for the moment—the U.S. House of Representatives of its ability to seek civil enforcement of subpoenas. In Committee on the Judiciary v. McGahn, the court…
The Supreme Court’s Mazars Decision Contains a Significant Suggestion That Congress May Be Bound by the Attorney-Client Privilege in Congressional Investigations
Understandably, much of the commentary following the release of the Supreme Court’s blockbuster decision in Trump v. Mazars USA, LLP has focused on the impact of the Court’s ruling on the long-running quest for the President’s tax returns and other financial records. Buried in the Court’s opinion, however, is an easily overlooked aside regarding the…
D.C. Circuit Rules Obstruction of Office of Congressional Ethics Not a Crime, but Questions and Risks Remain
In a unanimous ruling, the D.C. Circuit shed new light this week on the applicability of key federal criminal statutes on proceedings before the Office of Congressional Ethics (“OCE”). While largely removing the prospect of criminal obstruction liability for parties responding to inquiries from OCE, the court’s opinion is another reminder of the potentially…
Congressional Pandemic Oversight Bodies Begin to Take Shape
As we reported in our prior client advisory on the wave of investigations to follow the pandemic, the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act established three new bodies to conduct oversight and investigations on pandemic-related issues. Separately, House Speaker Nancy Pelosi announced a special committee to conduct additional pandemic-related oversight. In recent weeks,…
House Leaders Push Ahead with Proposal for Virtual Oversight
Last month, we highlighted congressional efforts to ensure that Congress is able to continue conducting the business of the American people during the ongoing COVID-19 crisis. After weeks of halting progress, those efforts took an important step forward this morning with the release of a proposed resolution that would temporarily modify the House rules to…
GAO Set To Launch Flurry of COVID-19 Related Audits
The Government Accountability Office (“GAO”), often referred to as Congress’ watchdog, is ramping up its oversight activities in preparation for an influx of investigations into fraud, waste, abuse, and mismanagement of funds distributed in Congress’s $2 trillion Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). The GAO recently signaled its intent to investigate a…
Congressional Paper Hearings: The Future or The Past?
Congressional leaders are actively exploring ways to continue the work of Congress as the COVID-19 crisis continues to unfold. Currently, Congress is not able to have live, in-person hearings, which are the primary tool for conducting oversight of both the private sector and the executive branch. With existing oversight investigations still underway—and the recent establishment…
Congress Creates New Oversight Functions for Coronavirus Relief
Although a final version of the Coronavirus Aid, Relief, and Economic Security (CARES) Act is not yet available, based on what we know so far, it appears that the legislation will include the provisions described below establishing oversight functions for the use of stimulus and bailout funds. According to a number of sources, the bill…