Congress Served Subpoena
Contents
- 1 What to Do If You Receive a Congressional Subpoena
- 2 Understand the Type of Subpoena
- 3 Determine the Issuing Authority
- 4 Note the Response Deadline
- 5 Assess the Scope of the Request
- 6 Preserve Responsive Documents
- 7 Decide Whether to Comply or Object
- 8 Engage Legal Counsel
- 9 Screen for Privilege
- 10 Prepare for Testimony
- 11 Fulfill Production Obligations
What to Do If You Receive a Congressional Subpoena
So you just got served a subpoena from Congress? Yikes, that‘s a doozy. But don’t panic – while it may seem scary and overwhelming, there are clear steps you can take to handle the situation. As someone who has advised many clients through this process, I’m here to walk you through what to expect and what you need to do.First off, let‘s cover the basics. A congressional subpoena is a formal written order that requires you to provide documents or appear before Congress to give testimony. It carries the full force of law behind it. Ignoring a subpoena could land you in serious legal trouble, so it’s important to take it seriously and respond appropriately.
Understand the Type of Subpoena
There are two main types of congressional subpoenas you may receive:
- Subpoena ad testificandum – This orders you to appear in person to provide sworn testimony at a congressional hearing or deposition.
- Subpoena duces tecum – This orders you to produce specific documents, records, or other tangible items to Congress by a certain deadline. You typically do not have to appear in person.
The subpoena should clearly state which type it is. If it’s not obvious, contact the issuing committee or consult with an attorney to clarify what is being requested of you.
Congressional subpoenas can be issued by various entities within the legislative branch, each with their own rules and procedures:
- Standing committees and subcommittees in the House and Senate
- Select or special committees
- Joint committees comprised of members of both chambers
- The Government Accountability Office (GAO)
Pay close attention to which entity issued your subpoena. This will dictate important details like response deadlines, who to contact with questions, and the scope of what you may be required to provide. The issuing authority should be clearly listed on the subpoena itself.
Note the Response Deadline
Your subpoena will list a date by which you must respond – either the date to appear and give testimony or the deadline to produce requested documents. This is not a “suggested” timeframe, it’s a hard legal deadline. Missing it could put you in contempt of Congress.Typically, you‘ll have at least a week or two to respond, but deadlines can sometimes be very tight, especially if Congress is working under time pressure. If you need more time, promptly contact the issuing authority to request an extension. In most cases, if you have a valid reason, they‘ll work with you on timing.
Assess the Scope of the Request
Read the subpoena carefully to determine exactly what information or documents Congress is seeking from you. The request should be reasonably specific. An overly broad subpoena that amounts to a “fishing expedition” may be challenged as invalid.Consider:
- What is the relevant time period?
- Are certain types of records included or excluded?
- How are key terms defined?
- Are you being asked for anything privileged or confidential?
If anything is unclear, follow up with the issuing authority for clarification. You want to be certain about what you need to provide to be in full compliance with the subpoena. An attorney can help assess the validity and scope of the request as well.
Preserve Responsive Documents
If your subpoena requires you to produce documents, it‘s critical that you preserve all records potentially responsive to the request. As soon as you receive a subpoena:
- Halt any routine document destruction practices
- Notify relevant employees, IT personnel, etc. not to delete or alter any pertinent records
- Identify all possible locations of responsive material (paper files, emails, electronic devices, cloud storage, etc.)
- Consider engaging a vendor specializing in e-discovery to assist with collecting and processing electronic data
Failing to preserve subpoenaed documents – even unintentionally – can lead to accusations of obstruction and potential legal exposure. Consult with counsel on implementing a proper “legal hold” to maintain all material that may need to be produced to Congress.
Decide Whether to Comply or Object
Once you‘ve assessed what your subpoena requires, you have a decision to make – will you comply with the request or challenge it? In most cases, compliance is advisable. Defying a congressional subpoena is a serious matter that can lead to severe consequences, including:
- Being held in contempt of Congress
- Monetary fines
- Potential jail time
- Damage to your reputation
However, there are some situations where objecting to a subpoena may be appropriate, such as if:
- It was improperly issued or served
- It is overly broad or unduly burdensome to fulfill
- It seeks information that is privileged, confidential, or protected by law
- It violates your constitutional rights (e.g. First or Fifth Amendment)
- Congress lacks jurisdiction over the subject matter
Mounting a legal challenge to a subpoena is a complex and often costly endeavor. It‘s not a decision to make lightly. Always consult with an experienced attorney before deciding to object. They can advise you on the strength of your position and potential risks.In general, unless you have very strong grounds to object, it‘s usually wisest to comply with a subpoena if possible. Establish a cooperative posture with Congress while protecting your interests. Fighting a subpoena is an uphill battle that often generates more problems than it solves.
Engage Legal Counsel
Receiving a congressional subpoena is a serious legal matter. Don’t try to go it alone. Promptly engage an attorney experienced in handling congressional investigations to advise and represent you. Select someone knowledgeable about the unique dynamics of Capitol Hill who can advocate skillfully on your behalf.Your lawyer can assist you with:
- Communicating with congressional staff
- Clarifying and potentially narrowing subpoena requests
- Identifying and screening for privileged material
- Preparing for testimony
- Asserting valid objections
- Mitigating legal and reputational risks
Time is of the essence when responding to a subpoena, so retain counsel as soon as possible. Waiting until the last minute will only make the process more difficult. Having a lawyer involved early maximizes your ability to respond fully and protect your rights.
Screen for Privilege
Before producing any documents to Congress, they must be carefully reviewed for material protected by attorney-client privilege, attorney work product, or other legal protections. Including privileged documents in a production can be deemed a waiver of privilege.Your attorney can explain what types of documents and communications may be privileged and establish a review process to screen for protected material. Privileged documents should be withheld from production and logged on a privilege log identifying the date, parties, and general subject matter. The log is provided to the issuing authority to substantiate your assertion of privilege.In some cases, Congress may challenge your claim of privilege and seek a court order compelling production. This is another area where having experienced counsel is invaluable to defend your privileged information. Never make determinations of privilege without legal advice.
Prepare for Testimony
If you’ve been subpoenaed to appear and give testimony, thorough preparation is essential. Congressional hearings are high-stakes events. Anything you say can be used against you and inconsistencies in your testimony can be portrayed as intentional deception. You want to present yourself in the best light possible.Your attorney can help you get ready to testify by:
- Familiarizing you with the committee’s focus and likely lines of questioning
- Reviewing relevant documents to refresh your recollection
- Conducting mock Q&A sessions to practice concise, truthful responses
- Advising you on demeanor, body language, and other optics
- Explaining your constitutional rights and how to assert them appropriately
Be prepared for a challenging, even hostile, environment. Members of Congress may lob accusatory questions and interrupt your answers. Stay calm, be respectful, and tell the truth. If you don’t recall something or aren’t certain, say so. Don‘t speculate or volunteer information not asked for.
Remember, you‘re under oath. Lying to Congress is a federal crime. Always be scrupulously honest in your testimony, even if the truth feels uncomfortable or unflattering. The cover-up is often worse than the crime. If you have something to correct, do so promptly.
Fulfill Production Obligations
If your subpoena requires you to produce documents, work diligently to collect, review, and submit all responsive material by the deadline. This can be a time-consuming and expensive process, especially if large volumes of data are involved. But a complete and timely production is essential to avoiding further legal complications.Your attorney can help you determine the most efficient methods to identify, preserve, and produce responsive documents. Common steps include:
- Interviewing custodians of relevant information
- Searching email and other electronic repositories
- Scanning and digitizing paper records
- Reviewing documents for responsiveness and privilege
- Organizing and indexing material for production
- Delivering documents securely to the issuing authority
Document your production efforts thoroughly. Maintain careful records of what was searched, reviewed, and produced. If questions arise later, you want a clear audit trail to demonstrate good-faith compliance with the subpoena.