If ever Congress tells you to do your civic duty and testify at one of its investigations, always remember: your first business duty should be to try to get out of it.
Fraser
“The answer is, `Sorry we can't make it,'” Mary Ellen Fraser, a partner at the law firm McKenna Long & Aldridge, told attendees at Compliance Week 2007.
Stefan Passantino, another partner at McKenna, put it another way: “The goal is to convince them that you are not the right person for the job. If you have an opportunity to point them in the right direction, do.”
Still, if Congress insists that you appear, the process must be taken very seriously. Yes, experts say, Congressional investigations themselves are important and should be respected, but equally important are the parallel investigations that inevitably crop up around them.
Foremost, if Congress is taking action on some topic, in all likelihood the Justice Department is already developing some case of its own. Even if no parallel investigations occur prior to the Congressional hearings, prosecutors often study the testimony at those hearings to determine their own course of action. Paul Pelletier, a prosecutor from the Justice Department, told the panel that his department often sends observers to Congressional hearings and orders transcripts from the sessions to determine whether any crimes have been committed.
Hochberg
“The congressional hearing is only the tip of the iceberg,” said Joshua Hochberg, a McKenna partner. “The more serious problem is the criminal investigation going on at the same time, or as a result of, the congressional investigation.”
That fact leads to another axiom of appearing before Congress: be truthful or exercise your Fifth Amendment right not to answer questions, but never lie. Particularly with complex business or accounting issues, proving a crime can be difficult, the Compliance Week panel speakers said. A much simpler—and more commonly employed—tactic is to show that someone has lied under oath or otherwise tried to obstruct justice. Those charges are what results in jail time, even when the original misdeeds do not lead to a conviction.
“Sometimes it is easier to prove the lie than the crime,” Pelletier said.
The panel also spoke about the need to be careful in all conversations related to the congressional investigation, even if not under oath. Getting together with a congressional staffer on an informal basis can provide useful information to lawmakers, which might come back to haunt someone asked to testify.
Passantino
“Everything you say is on the record,” Passantino said. “It's impossible to put the genie back in the bottle.”
While the panelists advised that getting legal representation is important from the first contact, they suggested that an experienced government relations liaison can be best for the initial conversations with congressional staffers.
Importantly, panel members also said that congressional investigations are likely to become more common over the next few years. Democrats newly returned to power in 2006 “have the perception that there has been no cop on the beat,” Fraser said.
No comments yet