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How to Respond to a Congressional Subpoena

Posted by Dmitry Gorin | Jun 12, 2024

A congressional subpoena is a powerful tool the United States Congress uses to gather information and testimony as part of its legislative and oversight responsibilities.

Congress might issue a subpoena to compel individuals or organizations to provide documents, records, or personal testimony under oath. The reasons for issuing a subpoena can vary widely, including investigating national security, financial misconduct, public policy issues, or governmental operations.

Standing committees of the House and Senate rely on the broad powers of Congress to investigate a wide array of issues, such as alleged political misconduct, cybersecurity failures, consumer fraud, and environmental crimes.

How to Respond to a Congressional Subpoena
You need to know how to respond to a congressional subpoena effectively.

The subpoena power of Congress, established by Supreme Court rulings, is designed to gather information and build cases to present to the grand jury for prosecution by the U.S. Department of Justice (DOJ) in federal court.

House and Senate committee subpoenas target witnesses, such as accounting firms, service providers, business partners, associates, etc. As a result, if you have received a congressional subpoena, whether in your capacity or as a corporate representative or custodian, you might be wondering exactly why you were subpoenaed.

Were you subpoenaed because a House or Senate committee targets you or your company? Is the committee seeking answers about another person or entity?

It's important to understand that responding to a congressional subpoena as a target and witness are two distinct situations. However, regardless of your role, providing information to Congress requires a strategic approach in all circumstances.

Upon receiving a congressional subpoena, it is imperative to engage experienced legal counsel immediately. This proactive step will help you navigate the complex legal process and prepare your responses effectively.

Even if you are not the direct target of an investigation, receiving a congressional subpoena is a serious matter. Ignoring it can lead to severe legal consequences. It's in your best interest to respond appropriately, and hiring a skilled federal defense attorney is the most effective way.

What Is a Congressional Subpoena?

A congressional subpoena is a formal demand issued by a committee or subcommittee of the United States Congress requiring an individual or entity to produce documents, testify before the committee, or both. Congress may issue subpoenas for various reasons, including:

  • Investigating Allegations of Wrongdoing: Congress often investigates misconduct allegations within government agencies, corporations, or individuals to ensure accountability and transparency.
  • Oversight and Accountability: Subpoenas oversee the implementation of federal laws and the functioning of federal agencies.
  • Informing Legislation: Congress can make informed decisions by gathering information through subpoenas when drafting new legislation.
  • National Security and Public Safety: Congressional investigations may address national security, public health, and safety issues.

Receiving a congressional subpoena signifies that you are officially required to participate in an investigation or hearing. This legal document compels your attendance at a specified time and place or mandates that you produce specific documents or records pertinent to the investigation. Non-compliance with a subpoena can result in serious legal consequences.

Can a Congressional Subpoena Lead to Federal Charges?

While a congressional subpoena does not constitute criminal charges, failure to comply can result in contempt of Congress, which is a criminal offense.

Additionally, the information or testimony you provide under a congressional subpoena can lead to further investigations by federal law enforcement agencies, potentially culminating in federal charges if misconduct or illegal activity is discovered.

In other words, unless you are granted some form of immunity, your responses to a subpoena could potentially result in criminal charges if they implicate you in a crime.

What are the Consequences of Failing to Respond?

Ignoring or refusing to comply with a congressional subpoena can lead to significant repercussions. Congress has several mechanisms to enforce compliance:

  • Civil Enforcement: Congress can file a lawsuit in federal court to enforce its subpoena.
  • Criminal Contempt: The Department of Justice may prosecute individuals who refuse to comply, potentially leading to fines and imprisonment.
  • Inherent Contempt: Though rarely used, Congress can detain individuals until they comply with the subpoena.

Noncompliance penalties can be severe, including substantial fines, imprisonment, and personal and professional reputation damage. Therefore, it's crucial to take any congressional subpoena seriously and respond promptly.

Steps to Take When Responding to a Congressional Subpoena

Our federal criminal defense lawyers provide full-service legal representation for congressional subpoena recipients. While this begins with responding to the subpoena itself, it will extend through and beyond the inquiry of the investigating congressional committee.

We also have extensive experience representing individual and corporate clients in DOJ matters, including law enforcement investigations and civil and criminal trials. As discussed below, you should follow some steps if you receive a congressional subpoena.

Read the Subpoena Carefully

Upon receiving a congressional subpoena, the first step is to read and understand the document thoroughly. It will detail what is required of you, including the specific documents or testimony requested and the compliance deadlines. Pay close attention to the dates, times, and locations specified.

Seek Legal Counsel

One of the most important steps is hiring a federal defense attorney with experience in congressional investigations. Legal counsel can help you understand your rights, navigate the complexities of the subpoena, and ensure that you comply with all legal obligations.

Responding to a Congressional Subpoena

An attorney can also communicate with the congressional committee on your behalf, negotiate deadlines, and possibly challenge the subpoena's scope if it is overly broad or burdensome.

Most importantly, your attorney can advise you when it is appropriate to invoke certain privileges, such as attorney-client privilege or the Constitutional right not to incriminate yourself with your answers (i.e., "pleading the Fifth").

Preserve Relevant Documents

Once you understand the subpoena's scope, you must take steps to preserve all documents, communications, and records related to the subpoena. Destruction or alteration of evidence can lead to additional legal issues, including obstruction of justice charges. Work closely with your attorney to identify and secure all relevant materials.

Prepare Your Response

Your response to a congressional subpoena must be precise and comprehensive. This involves collecting and organizing requested documents and, if required, preparing to provide testimony. An attorney can assist in ensuring that your response is complete and adheres to the legal requirements outlined in the subpoena.

Attend the Hearing or Provide the Requested Documents

If the subpoena requires you to appear before a congressional committee, ensure you are fully prepared. This means understanding the topics to be covered and having a strategy for your testimony.

Your attorney can prepare you for questions and help you navigate the hearing process effectively. If the subpoena only requires document production, ensure all documents are delivered in the format and manner specified.

Follow Up

After complying with the subpoena, additional requests for information or follow-up questions may arise. Communicate openly with your legal counsel and the congressional committee to ensure ongoing compliance. Contact our federal criminal defense law firm for more information. Eisner Gorin LLP is based in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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