Former US government attorneys representing recipients of subpoenas from Congress
The Standing Committees of the House and Senate draw on the broad powers of Congress to examine a wide range of issues. From alleged political misconduct to large-scale cybersecurity breaches, consumer fraud and environmental crimes, these committees rely heavily on the subpoena powers of Congress to gather information and create cases for prosecution by the US Department of Justice (DOJ).
House and Senate committees subpoena both targets and witnesses. Witnesses may include auditing firms, service providers, business partners, employees and confidants. So, if you have received a subpoena from Congress, either in your capacity as an individual or as a corporate representative or trustee, one of the first questions you need to answer is, "Why?" Were you subpoenaed because a House or Senate committee wanted you ( or your company)? Or members of the committee of inquiry want to find out what you (or your company) know about another person or organization? The answer is not always as clear as it seems.
Responding to a Congressional subpoena as a target and as a witness are two very different propositions. At the same time, however, providing information to Congress requires a moderate approach, regardless of the circumstances involved. Recipients of congressional subpoenas need experienced legal advice and should hire an attorney to begin preparing their responses immediately.
dr. Nick Oberheiden
John W. Seller
Former Lead Trial Attorney
US Department of Justice
Lawyer on site
Joanne Fine DeLena
Former Federal Auxiliary Inspector
Lawyer on site
Former US Attorney and Former District Attorney
Local trial attorney and attorney
Former US Attorney. UU.
Lawyer on site
Aaron L Wiley
ex Fiscal Confederation
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Former Special Agent (OIG)
Ehemaliger Supervisory Special Agent (FBI)
Former Special Agent (FBI and IRS-CI)
Kevin M. Sheridan
Former Special Agent (FBI)
Ehemaliger Supervisory Special Agent (FBI)
Dennis A Wichern
Former Responsible Special Agent (DEA)
Defenders for congressional subpoenas deeply embedded in Washington politics
Oberheiden PC is aFederal Defense Chancellerydeeply embedded in Washington politics. Led by founding attorney Nick Oberheiden, Ph.D., our congressional response team includes former U.S. attorneys, assistant federal attorneys, Justice Department prosecutors and federal agents. Our attorneys have advised government officials, defense contractors and corporate executives subpoenaed to testify before the Standing Committees of the House and Senate, and our former federal agents offer insights from decades of work on both sides of the law.congressional investigations.
Our services for recipients of subpoenas from Congress
We provide comprehensive legal representation for recipients of subpoenas from Congress. While this begins with responding to the subpoena itself, it goes beyond the investigative committee's investigation. We have extensive experience in representing private and corporate clients inAffairs of the Ministry of Justicealso, including police investigations and civil and criminal proceedings.
Our services for recipients of subpoenas from Congress include:
- Assess the scope, nature and priorities of the investigation- We will review the Congressional subpoena to determine (i) why you have been subpoenaed, (ii) what records or testimony you are being asked to provide, and (iii) what the committee of inquiry hopes to achieve by participating in its investigation.
- Communicating with members of the House of Representatives or Senate Committee- If necessary, we will contact members of the committee of inquiry to negotiate the scope of the subpoena, to ensure protections for you or your company and to ensure that committee members who support you are actively involved in the future.
- Collection and preparation of documents in response to subpoenas from Congress– The collection and preparation of documents in response to a Congressional subpoena is often a challenging and time-consuming process. Our attorneys will manage the process and help you submit an appropriate response in a timely manner.
- Preparation of oral testimony at the Capitol- If you are subpoenaed to testify on Capitol Hill, our attorneys and counsel will work extensively with you to prepare your opening statement, anticipate questions, and formulate your responses.
- Representation in the US Capitol Building.- Our attorneys will also be by your side as you enter the United States Capitol to testify. While House and Senate Committee rules limit attorney participation at live testimonies, we will be there to advise you to the fullest extent of our authority.
What Recipients of Congressional Subpoenas Need to Know
There are several factors that make responding to a congressional subpoena different. Whether you have been subpoenaed to produce documents or totestify before CongressHere are some important facts you need to know:
1. The Scope of Congress's Subpoena Power
The subpoena power of Congress is extremely broad. The House and Senate committees have very limited oversight over the issuance of subpoenas, and grounds for challenging congressional subpoenas are minimal at best. Committees in Congress may subpoena officials, individuals, and corporations, and may use Congressional subpoena powers to obtain extraordinary amounts of information when that information may not be available to the government through other investigative means.
2. Address risks, challenges and impossibilities
With this in mind, what can (and should) recipients of congressional subpoenas do to protect themselves? What happens if the recipient of a subpoena from Congress is unable, in practice, to comply with his or her subpoena within the time allowed? In these scenarios, it is imperative to have a defense attorney who can communicate effectively with the committee of inquiry members. It will often be possible to negotiate the scope of a congressional subpoena so long as defense counsel understands the committee's goals and can offer a solution that provides adequate protection while meeting the committee's priorities.
3. Attorney-client privilege is not guaranteed
Attorney-client privilege is not guaranteed in congressional investigations. This is a crucial fact that subpoena recipients should consider when preparing response documents and testimonies. However, experienced defense attorneys are often able to ensure the protection of privileged materials and communications throughout the negotiation process.
4. Political dynamics can play a key role
It's no secret that House and Senate committee investigations are often politically motivated. When it comes to political dynamics, this is not a factor to be overlooked. In fact, the political dynamics of a congressional investigation can have a direct impact on how the subpoena recipient should handle their response. These dynamics may also influence other actions that need to be taken in response to the Committee's investigation.
5. Non-observance can have serious consequences
While it will often be possible to negotiate the obligations of the recipient of a subpoena to Congress, recipients should never do soassumeYou will be able to give less than a fully compliant answer. Failure to comply with a full subpoena from Congress can haveserious consequences– including (but not limited to) criminal prosecution for contempt.
Frequently Asked Questions: How to respond to a subpoena from Congress
Why did I receive a subpoena from Congress?
There are several reasons you may have received a subpoena from Congress. In order to determine why a standing committee has ordered you to produce documents or testify, examining the subpoena itself begins, but that alone may not be enough. It may also be necessary to contact the committee or otherwise gather information about the committee's investigation. When you hire our firm to represent you (or your business), our attorneys will work quickly to understand the purpose and scope of the Committee's investigation.
What should I do in response to a subpoena from Congress?
What you must do in response to a subpoena from Congress depends on the language of the subpoena. In general, a subpoena from Congress may compel the production of records or testimony (or both). Producing records in response to a congressional subpoena often requires a tremendous effort, while preparing testimony requires a shrewd and strategic approach based on a clear understanding of what Congress is investigating and why.
Can I ignore a subpoena from Congress?
No, you can't just ignore a subpoena from Congress. Congress has significant executive powers, and failure to produce a record or testify in response to a subpoena from Congress may result in civil or criminal penalties. If you have concerns about how to respond to a congressional subpoena, you should consult a federal defense attorney before taking any action that could have an adverse effect.
How long do I have to respond to a subpoena from Congress?
The time limit for responding to a subpoena (or the date by which you will be subpoenaed to testify) is indicated on the subpoena itself. Once you receive a subpoena from Congress, it is extremely important that you meet this deadline. If you do not submit a timely and compliant response, or if you do not show up when requested, you risk being disregarded and facing civil or criminal penalties.
Will information I provide in response to a subpoena from Congress be kept confidential?
Generally, information provided in response to a subpoena from Congress will not be treated as confidential. For obvious reasons, this is a major concern for many subpoena recipients. If your congressional subpoena requires the production of confidential records or the disclosure of confidential information in your testimony, that is an issue your defense attorney can raise with the committee of inquiry prior to your response deadline or hearing date.
Speak to an attorney at Oberheiden P.C. about his congressional subpoena
Federal defender and advisor to Oberheiden P.C. Provide strategic advice and representation for recipients of convention subpoenas based on extensive real-world experience. If you have received a subpoena from a House or Senate Standing Committee, we can help you protect your interests while complying with your legal obligations. To get started with a free initial consultation, call 888-680-1745 orlet us know how we can reach you onlinehallo.
Learn more about subpoenas from Congress
- 5 mistakes to avoid when testifying before Congress
- 5 things to know about testifying before Congress
- Are subpoenas from Congress enforceable?
- Can Congress subpoena private individuals?
- Appealing the Fifth Amendment before Congress
- Testimony before Congress
- What is a subpoena for Congress?
- What is the constitutional process for subpoenas from Congress?
- What is the penalty for declining a subpoena from Congress?
- What is Senate Subpoena Power?
- Who in Congress has subpoena authority?
Under this statute the wrongful refusal to comply with a congressional subpoena is made punishable by a fine of up to $1,000 and imprisonment for up to one year. A committee may vote to seek a contempt citation against a recalcitrant witness. This action is then reported to the House. 2 USC Sec.How are congressional subpoenas served? ›
Four committees—Budget, Financial Services, Natural Resources, and Rules—provide that a subpoena may be served by any person designated by the chair or by the member authorized by the committee to issue subpoenas. The Intelligence Committee's rule allows the chair to designate a person to serve a subpoena.Does Congress have the authority to investigate a private citizen? ›
United States Servicemen's Fund, 421 U.S. 491, 504 n. 15 (1975) ( Although the power to investigate is necessarily broad it is not unlimited . . . . We have made it clear [ ] that Congress is not invested with a ''general' power to inquire into private affairs.How are subpoenas a tool for Congress to oversight enforce checks and balances in national government? ›
When Congress finds an inquiry blocked by the withholding of information by the executive branch, or where the traditional process of negotiation and accommodation is inappropriate or unavailing, a subpoena—either for testimony or documents— may be used to compel compliance with congressional demands.Can you fight a congressional subpoena? ›
Under that ruling, courts generally do not hear motions to quash congressional subpoenas; even when executive branch officials refuse to comply, courts tend to rule that such matters are "political questions" unsuitable for judicial remedy.Can I plead the 5th when subpoenaed? ›
An individual can only invoke the Fifth Amendment in response to a communication that is compelled, such as through a subpoena or other legal process. The communication must also be testimonial in nature. In other words, it must relate to either express or implied assertions of fact or belief.Can you refuse a subpoena? ›
Failure to respond to a subpoena is punishable as contempt by either the court or agency issuing the subpoena. Punishment may include monetary sanctions (even imprisonment although extremely unlikely).What is the seven member rule? ›
The Seven Member Rule (House) / Five Member Rule (Senate) in the United States Congress is an important but seldom used statute that allows members from the legislature's oversight committees to compel offices within the executive branch to release information.Who has the power to issue subpoena? ›
The Chief of the Philippine National Police (PNP) and the Director and the Deputy Director for Administration of the Criminal Investigation and Detection Group (CIDG), referred to as the Criminal Investigation Unit in Section 35(b)(4) of this Act, shall have the power to administer oath, and issue subpoena and subpoena ...What are the 3 congressional investigative powers? ›
Daugherty (1927) that congressional committees can issue subpoenas, compel witnesses to testify, and hold them in contempt if they failed to comply.
The Constitution says nothing about congressional investigations and oversight, but the authority to conduct investigations is implied since Congress possesses “all legislative powers.” The Supreme Court determined that the framers intended for Congress to seek out information when crafting or reviewing legislation.Which action can Congress not perform? ›
Congress could not raise funds, regulate trade, or conduct foreign policy without the voluntary agreement of the states.How long does a congressional inquiry take? ›
Typically, an agency responds within 30 days to a congressional inquiry. However, the nature of the case will dictate the time it takes to resolve the issues. As a general rule, federal agencies will not expedite your case due to a Congressional inquiry.How can Congress check the federal courts? ›
Congress can pass legislation to attempt to limit the Court's power: by changing the Court's jurisdiction; by modifying the impact of a Court decision after it has been made; or by amending the Constitution in relation to the Court.What ways can Congress check the authority of the federal court system? ›
The president and Congress have some control of the judiciary with their power to appoint and confirm appointments of judges and justices. Congress also may impeach judges (only seven have actually been removed from office), alter the organization of the federal court system, and amend the Constitution.Is it a crime to obstruct a congressional investigation? ›
Proceedings (18 U.S.C. 1505)
Section 1505 outlaws obstructing congressional or federal administrative proceedings, a crime punishable by imprisonment not more than five years (not more than eight years if the offense involves domestic or international terrorism).
He includes a constitutional provision that an individual shall not “be compelled to be a witness against himself.” Congress adds the words “in any criminal case,” meaning that the provision, which will become known as “taking the Fifth,” will be allowed only in criminal trials, not civil ones.Are congressional proceedings secret? ›
All business is considered secret, including senatorial remarks, votes, and other parliamentary proceedings. The Senate can vote during the session or later to lift the secrecy, at which time the vote and the session proceedings will be published in the Congressional Record.Can a judge overrule pleading the 5th? ›
Waiving Your Fifth Amendment Privilege
For example, if a witness invokes the Fifth but goes on to selectively answer questions about the same subject matter, a judge might decide that the later answers invalidate the initial waiver.
The Framers included this amendment to protect both the guilty and the innocent. And, in a criminal case, the defendant's refusal to testify cannot be used against him. The jury is specifically instructed that they are to draw no adverse conclusions from this fact.
An innocent person could plead the fifth if they are innocent of the crime being investigated, but answering could lead to minor, unrelated criminal charges. An innocent person may plead the fifth if they know they are innocent, but the situation looks bad for them and answering will only arouse more suspicion.Can you plead the fifth as a witness? ›
You also have the right to plead the Fifth when you are a witness in a federal criminal case. Much like with a defendant, a witness may refuse to answer any questions that might tend to implicate them in a crime.How long does a subpoena last? ›
Follow Federal Rules of Civil Procedure Rule 45(b). Pursuant to Rule 45(d)(2)(B), the party has 14 days to respond after service of the subpoena, or the party must respond before the time specified for compliance in the subpoena if it is less than 14 days.What are reasons to get out of a subpoena? ›
- Avoidance. A subpoena must be served by someone personally delivering a copy of it to you. ...
- Objection. A person that is subpoenaed to produce or inspect documents or other material may slow the process by objecting to the subpoena in writing. ...
- Undue Burden. ...
- Priveleged Information.
Article I, Section II of the Constitution says that each state shall have at least one U.S. Representative, while the total size of a state's delegation to the House depends on its population. The number of Representatives also cannot be greater than one for every thirty thousand people.Can the FBI issue a subpoena? ›
o Grand jury subpoenas can only be obtained with the approval of a federal prosecutor for the purpose of further the grand jury's investigation into serious federal crimes. In intelligence investigations, the FBI operates under the authority of the Foreign Intelligence Surveillance Court.Who can issue a subpoena in the US? ›
It may be issued by a Judge, Magistrate or the Clerk of Court upon request by either defense or plaintiffs attorney. Subpoenas are also issued by the clerk, signed, sealed, and otherwise blank, to Federal agencies and attorneys.Will a subpoena issued by lawyers be enforceable? ›
When you receive a valid, issued and served subpoena, you are obliged to comply with its provisions, unless the relevant attorney or prosecutor that issued the subpoena has agreed and confirmed in writing that you do not have to comply with it.What is Congress most powerful oversight tool? ›
Perhaps Congress's most powerful oversight tool is the Government Accountability Office (GAO). http://www.gao.gov/ (May 1, 2016). The GAO is an agency that provides Congress, its committees, and the heads of the executive agencies with auditing, evaluation, and investigative services.Who can start a congressional investigation? ›
The authority of Congress to investigate is an implied constitutional power, one that Congress has exercised since the earliest days of the republic.
A hearing is a meeting or session of a Senate, House, joint, or special committee of Congress, usually open to the public, to obtain information and opinions on proposed legislation, conduct an investigation, or evaluate/oversee the activities of a government department or the implementation of a Federal law.What are 5 things Congress Cannot do? ›
Congress cannot suspend habeas corpus, pass bills of attainder or ex post facto laws, favor one state over another, tax any state's exports to another, take public money without appropriation, or grant titles of nobility.What is the only crime that Congress can punish? ›
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.What can Congress do and Cannot do? ›
The Constitution grants Congress the sole authority to enact legislation and declare war, the right to confirm or reject many Presidential appointments, and substantial investigative powers.What are two things Congress is forbidden to do? ›
Section 9: Powers Denied Congress
No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State.
Congress may try to overturn an executive order by passing a bill that blocks it. But the president can veto that bill. Congress would then need to override that veto to pass the bill. Also, the Supreme Court can declare an executive order unconstitutional.What three things can Congress not establish without due process? ›
After the Civil War, Congress adopted a number of measures to protect individual rights from interference by the states. Among them was the Fourteenth Amendment, which prohibits the states from depriving “any person of life, liberty, or property, without due process of law.”Can a congressional subpoena be ignored? ›
Under this statute the wrongful refusal to comply with a congressional subpoena is made punishable by a fine of up to $1,000 and imprisonment for up to one year. A committee may vote to seek a contempt citation against a recalcitrant witness. This action is then reported to the House.What happens after a congressional hearing? ›
After hearings are completed, the bill is considered in a session that is popularly known as the “mark-up” session. Members of the committee study the viewpoints presented in detail. Amendments may be offered to the bill, and the committee members vote to accept or reject these changes.Is a congressional inquiry a record? ›
The Congressional Record is a record of the proceedings of Congress. It is published daily when one or both chambers of Congress is in session and is available the following morning.
Generally, Congress determines the jurisdiction of the federal courts. In some cases, however — such as in the example of a dispute between two or more U.S. states — the Constitution grants the Supreme Court original jurisdiction, an authority that cannot be stripped by Congress.Can Congress control jurisdiction of federal courts? ›
In addition, Congress possesses extensive authority to regulate the jurisdiction of the lower federal courts, and may limit the cases the Supreme Court can hear on appeal by generally stripping the federal courts of jurisdiction over certain cases.Does federal law supersede State Constitution? ›
Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.Does the Fifth Amendment apply to congressional hearings? ›
As a general matter, witnesses may invoke the Fifth Amendment privilege during a congressional investigation with regard to testimony or documents that are: (1) testimonial (“relate[s] a factual assertion”); (2) self-incriminating (any disclosures that tends to show guilt or that furnishes any “link in the chain of ...Can subpoena be refused? ›
Can I Refuse a Subpoena? No. Refusing a subpoena can result in you being held in contempt of court and the court may issue a warrant for your arrest.