White-collar defense lawyers abound in Washington, D.C. Yet a common misconception persists even among seasoned litigators:
Can there really be that much difference between a federal agency investigation and a congressional inquiry? Isn’t it all ultimately a search for truth through facts and law?
The short answer is no.
Congressional oversight serves a constitutionally distinct purpose. It operates under unique institutional rules and incentives that differ significantly from those governing judicial or regulatory proceedings.
Counsel navigating this forum on behalf of clients must adapt strategy accordingly.
Legislative Purpose and Public Oversight
By constitutional design, congressional inquiries are legislative in nature. They seek to develop a record upon which legislative action can be based. Unlike courts, which focus on adjudicating specific legal disputes between adverse parties, congressional committees conduct inquiries to inform potential legislative action, evaluate agency conduct, collectively referred to as “oversight”, and bring public accountability to matters of national interest.
Because committee hearings serve broad oversight objectives, they bear little resemblance to judicial proceedings. There are witnesses, of course, and committee members pose questions that witnesses answer under oath, subject to penalties for perjury. But this is where the similarities end.
Unlike prosecutors or lawyers in a courtroom, committee members use their questions to establish a public record, highlight broad policy concerns, and communicate legislative priorities to their constituents. Often, these efforts are directed toward advancing a broader political narrative. In a courtroom, the objective is to search for truth. In a congressional hearing room, the objective is often to advance a legislative or legislator’s agenda.
In congressional inquiries, the standard rules of evidence do not apply. Instead, parliamentary procedure, the Rules of the House or Senate, as applicable, and the rules of the specific committee conducting the hearing govern the proceedings. These rules give committee chairs significant discretion in directing and managing proceedings.
Despite these procedural differences, the legal risks remain substantial.
Witnesses face real-world exposure, including reputational harm and potential criminal liability under statutes governing false statements (18 U.S.C. § 1001), perjury (18 U.S.C. § 1621), obstruction (18 U.S.C. § 1505), and contempt of Congress (2 U.S.C. § 192).
Challenges to Investigative Authority
Congress possesses broad constitutional authority to conduct inquiries in aid of its legislative function. The Supreme Court affirmed this principle in Watkins v. United States, 354 U.S. 178, 187 (1957). House and Senate rules grant committees specific authority to issue subpoenas, take depositions, and conduct hearings. Crucially, no two committees operate under identical procedural rules.
Despite this broad latitude, committee authority is not unbridled and remains subject to structural limits. See Watkins, 354 U.S. at 200–207. Counsel can evaluate a committee’s authority to compel testimony or document production on jurisdictional or procedural grounds. A subpoena may be subject to challenge if the issuing committee lacks jurisdiction over the underlying subject matter, was improperly constituted, or failed to adhere to its own internal rules governing authorization, issuance, or service. Id.
Technical and procedural defenses, however, must be raised directly before the committee. Failure to assert these objections early may constitute a waiver if the dispute later reaches federal court. See United States v. Bryan, 339 U.S. 323, 333 (1950). Verifying the jurisdictional reach and facial validity of both the subpoena and the underlying inquiry is therefore a vital first step in any defense strategy.
Contempt of Congress and the “Willfulness” Standard
Willful failure to comply with a congressional subpoena for documents or testimony is a misdemeanor offense under 2 U.S.C. § 192. It carries potential penalties of a $100,000 fine and up to 12 months’ imprisonment.
When a witness refuses to comply, the issuing committee may vote to hold the individual or entity in contempt. If the committee approves the contempt resolution, the matter is referred to the full chamber. If the House or Senate, as applicable, adopts the contempt report, the matter is then referred to the U.S. Department of Justice (DOJ). As an independent executive branch entity, DOJ conducts its own review to determine whether to seek a grand jury indictment for contempt of Congress. DOJ retains prosecutorial discretion to proceed or decline to do so.
(Beyond statutory referrals, Congress retains its historical inherent-contempt power to detain recalcitrant witnesses and may also initiate civil enforcement actions in federal court.)
A critical consideration for counsel is the legal standard for “willfulness” under § 192. The government is not required to prove bad faith or specific unlawful intent. As affirmed in United States v. Bannon, 101 F.4th 16 (D.C. Cir. 2024), and Licavoli v. United States, 294 F.2d 207 (D.C. Cir. 1961), and reaffirmed on July 21, 2026, in United States v. Navarro, 182 F.4th 1005 (D.C. Cir.), the government need only prove a deliberate and intentional failure to comply. A good-faith belief that one had a lawful basis for refusing compliance, such as reliance on the advice of counsel or an unadjudicated claim of executive privilege, does not, under the governing jurisprudence, negate criminal liability under the statute.
A recent memorandum by DOJ’s Office of Legal Counsel opines that executive privilege protection may extend to external, private presidential advisers. See 50 Op. O.L.C. __ (Aug. 10, 2026). The memorandum will invite even greater scrutiny of congressional demands for information while the courts determine whether to sustain DOJ’s rationale for extending privilege to communications with private parties. The memorandum is unlikely to sit well with Congress and will almost certainly be challenged as soon as politically practicable.
Navigating Assertions of Privilege
The Fifth Amendment’s protection against self-incrimination applies in congressional proceedings. Congress can overcome a Fifth Amendment claim by granting statutory immunity under 18 U.S.C. § 6005, but doing so creates significant evidentiary hurdles for subsequent executive branch prosecutions. See United States v. Oliver North, 910 F.2d 843 (D.C. Cir. 1990). Consequently, committees often coordinate with DOJ before granting immunity to avoid compromising parallel criminal investigations.
Executive privilege presents another layer of complexity when Congress demands information concerning presidential communications or decision-making. Courts consistently urge the political branches to resolve these constitutional disputes through negotiation and accommodation rather than judicial intervention. See Trump v. Mazars USA, LLP, 591 U.S. 848 (2020). The legal contours of who may assert executive privilege, whether a sitting president may waive a predecessor’s claim, and the standard required to overcome the privilege remain subjects of ongoing legal debate and judicial interpretation.
In contrast to court proceedings, Congress maintains that it is not legally bound by common-law privileges, such as the attorney-client privilege or attorney work-product doctrine. Although committee staff frequently respect valid privilege assertions as a matter of discretion and institutional comity, such protection is not guaranteed. Furthermore, Congress explicitly rejects claims of attorney-client privilege asserted by government agencies or agency personnel concerning official communications.
Before proceeding, counsel should obtain and memorialize assurances regarding whether any of these privileges will be recognized.
Is Preemptive Relief from a Subpoena Available?
Targeted parties often ask whether they can successfully bring an action in federal court to quash a congressional subpoena. Generally, the answer is no. Under the Constitution’s Speech or Debate Clause (Art. I, § 6, cl. 1), courts treat direct challenges to legislative subpoenas as nonjusticiable interferences with legislative functions. See Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975).
Limited exceptions exist, however, in which a party may seek to enjoin a third party, such as a bank or telecommunications provider, from complying with a subpoena for records that arguably infringes constitutionally protected rights, privacy interests, or executive privilege. See Trump v. Mazars USA; United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977). Otherwise, a witness typically must choose between complying with the production demand and risking criminal contempt prosecution in order to raise legal defenses in court after the fact.
Takeaways for Corporate Leadership
Given the stakes, corporations and executives should proactively manage the risks associated with congressional inquiries long before a formal letter or subpoena arrives:
- Include congressional inquiries as a distinct category within broader corporate risk-assessment frameworks.
- Maintain consistent compliance with document-retention guidelines so that relevant data can be efficiently located, reviewed, and segregated, thereby reducing review costs and mitigating spoliation claims.
- Establish routine internal protocols to ensure that attorney-client communications are clearly designated and separated from operational business records.
- Upon receiving an inquiry—or becoming involved in a high-profile matter—retain counsel with specific experience in congressional investigations and committee practice.
About the Authors
John P. Rowley III and John S. Irving IV are former federal prosecutors who represented Peter Navarro at trial and on appeal before the United States Court of Appeals for the District of Columbia Circuit.
Patrick B. Murray is a former federal prosecutor in Chicago who served as Staff Director and Chief Counsel of the House Permanent Select Committee on Intelligence, Counsel for the House Judiciary Committee, and Associate Deputy Attorney General at the Department of Justice.
They can be reached at jrowley@secillaw.com, jirving@secillaw.com, and pmurray@secillaw.com, respectively.