White Collar Year In Preview: Impeachment Implications

This is the seventh and last post in our start-of-year series examining important trends in white collar law and investigations in the coming year. Our previous entry discussed sanctions and export controls trends in 2020. We look forward to keep you apprised of developments in all of these areas in the year ahead.

In 2019 we saw the conclusion of a nationally-significant grand jury matter in the Mueller investigation, and the beginning of an even more historic and remarkable congressional inquiry in the investigation and impeachment of President Trump. These events have caused many citizens across the country to encounter and give thought to our criminal and legislative investigation processes. Importantly, for companies and individuals who may face investigations by the executive (DOJ) or legislative branches in the future, the past year has provided a stark example of the significant similarities and differences between proceedings in these spheres. While some tactics are certainly common to both grand jury and congressional investigations—such as establishing and maintaining effective communication with the government actors involved—the differences in authority, publicity, and scope often require nuanced approaches in one forum that may not be effective in the other.

For example, consider subpoenas issued by a grand jury or Congress. Like civil subpoenas, both grand jury and congressional subpoenas often appear broad. However, the scopes of these subpoenas can vary. Grand jury subpoenas are generally targeted at a broad set of materials covering a relatively discrete subject matter: the potentially criminal actions of a company or set of individuals, for example. The effective scope of a grand jury investigation is therefore fairly tailored and it is generally unwise to parse their wording too closely. Managing the response, and ultimately providing agreed upon but complete disclosure of documents if and when required is generally an appropriate strategy to put a company in a good position with investigators. In other words, in grand jury subpoena responses it is generally better to disclose fully and defend strategically and vigorously.

Congress, on the other hand, has incredibly broad subpoena authority, extending to investigation any issue "on which legislation could be had." McGrain v. Daugherty, 273 U.S. 135, 177 (1927). Essentially, Congress can look into anything that might have to do with current laws or potential legislation...

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