It may begin with an unusual media inquiry or a sudden spike in interest on social media. Just as often, it starts with a non-public request for documents or other evidence. Your boss or your staff have been accused of wrongdoing, and it falls to you to lead the response.
In recent months, Members of Congress and their staff have faced an unprecedented array of investigative threats, alongside significant departures from the traditional ways in which such investigations are conducted. And in recent years, several Members of Congress have been investigated, charged, and in some cases convicted. Aggressive investigators targeting Members and their staff can derail a campaign or disrupt an office’s legislative agenda. Indeed, even where there is no actual evidence of wrongdoing, an investigation itself can quickly become an overwhelming distraction for any office. With the 2026 midterms on the horizon, the possibility of—and risks associated with—investigations targeting Members and their staff will continue to rise.
In this highly-politicized environment, taking the right steps in the first hours and days after an inquiry begins can mean the difference between a swift (ideally, non-public) resolution and a years-long crisis. Much the same, where an inquiry does become widely known, an office’s public messaging can significantly affect the course and outcome of an investigation. With a Member’s senior staff often responsible for directing the office’s initial response, it is more important than ever for Chiefs of Staff and other senior staffers to be prepared before an investigation begins.
This guide outlines “best practices” to help Chiefs navigate their way through the opening stages of an investigation, including tips to avoid common mistakes that too often make an investigation more damaging than it might have otherwise been. From there, we discuss approaches for handling the most common types of investigations targeting Members of Congress and their staff, including investigations by the U.S. Department of Justice (“DOJ”), the House and Senate Ethics Committees, and others.
However an investigation begins, it is essential to act quickly—and carefully—as soon as the possibility of an inquiry becomes clear. Doing so helps minimize the risk that the inquiry develops into a full-blown investigation, while maximizing the chance of a successful resolution if it does. The following checklist outlines specific steps congressional offices can take in the days after becoming aware of a potential investigation to ensure they are best prepared to respond. Thereafter, we provide additional information regarding each of these steps and best practices for responding to any new investigative inquiry.
Retaining Counsel and Finding the Facts
- Designate a small team who will be responsible for overseeing the office’s response and carefully consider internal communications regarding any investigation response.
- Involve counsel as early as possible, including in any campaign-related self-research on potential legal vulnerabilities, to help ensure that internal fact-gathering remains privileged.
- Where appropriate, consider options for fundraising to support anticipated legal expenses, even in advance of a formal investigation.
Preserving Documents
- Advise relevant staff of their obligation to preserve documents and consider circulating a document hold notice.
- Take steps to prevent the auto-deletion or destruction of potentially relevant documents, particularly including communications via ephemeral messaging apps (e.g., Signal or Wickr).
Communicating Inside and Outside the Office
- Be mindful that internal communications that do not involve counsel likely will not be privileged.
- Advise staff to avoid discussing an investigation outside the office—even with leadership or other friendly offices—unless absolutely necessary and only after consulting counsel.
Communicating with the Press and Social Media
- Ensure that official statements in response to an investigation are closely reviewed by counsel.
- Be aware of the risk of overstatements in any public response, particularly when internal fact-gathering is underway.
Avoiding Unforced Errors
- Avoid process fouls (e.g., destruction of relevant documents, definitive statements that prove to be incorrect, etc.), which can draw additional scrutiny and undermine credibility, while supporting independent allegations of wrongdoing.
- Work closely with counsel to avoid unforced errors and minimize any additional risk arising out of an investigation itself.
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Any effective investigation response begins with a thorough understanding of the underlying facts. For that reason, it is critical to begin collecting relevant information as soon as it clear that an investigation is likely or has in fact begun. To help ensure that this fact-finding exercise will be privileged, counsel should take the lead whenever possible. If the staff conducts an internal review without meaningful involvement of counsel, the staff’s findings and communications may well be subject to disclosure to investigators.
Many things can—and do—go wrong when initial fact-gathering is done by staff, who are often rushing in an effort to anticipate and respond to press inquiries. Dozens or hundreds of emails and text messages may be generated that are not protected by attorney-client privilege and that contain rumors or inartful language that could later be misconstrued. Witnesses’ recollections may become muddled. Worse still, the fact-gathering exercise itself could later be viewed by an investigator, fairly or not, as an illegal effort to coerce witnesses or to “get their stories straight.” Similarly, even absent an active investigation, counsel should be included in any proactive efforts to assess potential legal vulnerabilities (e.g., the preparation of self-research in connection with a forthcoming campaign) to help ensure that any resulting work product is shielded from future disclosure.
Ideally, early fact-gathering is conducted by a small internal team supported by outside counsel, which can allow for the protections of the attorney-client privilege and the attorney work product doctrine. Though the privilege may attach to some work conducted by lawyers on a Member’s staff, it is on much stronger ground with outside counsel not employed by the House or Senate. For this reason, and because actions taken in the initial days of an investigation may shape its future course and ultimate outcome, it is wise to retain outside counsel at the outset of the investigation. It is common, however, for Members to delay retaining outside counsel as they worry about reporting attorneys’ fees on their Federal Election Commission (“FEC”) reports, drawing media attention. They worry, too, that hiring a lawyer will be viewed as evidence of guilt. But if it is likely that outside counsel eventually will be retained, it is far better to retain them at the outset.
Chiefs should keep in mind that a lawyer hired to represent the Member is the Member’s lawyer, and not the lawyer for individual staffers or for the office as a whole. When the interests of staff members diverge from those of the Member, or of other staff, certain staff may require their own personal counsel. Counsel fees can sometimes be paid using campaign funds when legal representation relates to campaign or official duties, after consultation with the Ethics Committees and the FEC. Likewise, even before an investigation begins, it may be prudent to consider strategies to raise funds to support anticipated legal expenses.
Very often, an investigation will begin with a broad request for documents, which must be carefully collected and reviewed before being submitted to investigators. In some cases, the scope of these requests, and the pace at which documents will ultimately be provided, may be subject to negotiation. In all cases, investigators will assume that steps have been taken to ensure that the documents they have requested are not lost or destroyed while an investigation is pending. Failure to do so could bring additional scrutiny and—in the worst case—outright allegations of willful obstruction.
The obligation to preserve documents is triggered when there is awareness of a reasonably likely complaint or investigation. Papers, computer files, emails, texts—almost anything stored physically or electronically—must be preserved if they are relevant to the investigation. This obligation could extend to office, campaign, and PAC documents, as well as anything else—including on personal devices—in the Member’s or staffer’s possession, custody, or control.
A “document hold notice” should be circulated promptly to instruct staff to retain relevant documents. The memo should be distributed broadly enough to be effective, but the more widely it is circulated, the less likely it is that news of the investigation will remain confidential. Technical issues to be mindful of include ensuring that automatic deletion protocols on email accounts, texting apps, and calendars are turned off, backup system files are retained, and documents on home computers and personal devices are preserved. Keep in mind that relevant data (including emails, texts, and voicemails) may exist in personal email accounts, on personal phones and tablets, and in other personal electronic media. Such data, if relevant to the investigation, must also be preserved. One particular area of concern is the use of ephemeral messaging apps that do not retain messages. Using Signal or similar apps during the course of an investigation could raise serious compliance issues and may need to be suspended, depending in part on the settings for those apps.
In some cases, to ensure adequate preservation of data on House and Senate servers, it may be necessary to consult with the House or Senate Sergeant at Arms, Counsel to the House or Senate, or other administrative offices. Such consultations themselves, however, may be sensitive if the investigation is not yet public.
It is important to be aware of privilege and discovery issues during the course of an investigation, as well as when an investigation may not have been formally initiated but can reasonably be anticipated. Communications within the office that do not include counsel are not privileged, and such communications may be sought by investigators either through document requests or requests for witness testimony. Communications with other offices, even leadership, likely will be discoverable in any investigation or legal proceeding. Staff should not consult about the investigation outside the office unless absolutely necessary.
There will be great pressure to give an immediate statement to the press once the investigation becomes public, but any early statement to the press or social media that later is determined to be inaccurate could be extremely damaging, both legally and politically. At least in the early stages of an investigation, the best statements often say as little as possible. Outright or blanket denials can be dangerous, especially before all the facts are known. Keep in mind that drafts of press statements and talking points may be discoverable by investigative authorities, and they certainly will be discoverable if they are not prepared in consultation with counsel. If drafts are obtained during an investigation, any differences between drafts and the final version will draw attention.
Unfortunately, even in cases where there may be no basis for the original investigation, Members and staff sometimes dig themselves deeper into the hole by taking actions that investigators later perceive to have obstructed the investigation. Obstruction of justice, false statements to investigators, and perjury allegations can be more damaging than the original allegation of wrongdoing. This is an old Washington adage: The cover-up may be worse than the (alleged) crime. Make sure everyone on the staff understands the importance of not interfering with, or appearing to interfere with, the investigation. Pay particular attention to junior staff who may not have experience dealing with the scrutiny that comes with an investigation.
Beyond the general best practices described above, successfully navigating an investigation requires familiarity with the specific authorities, procedures, and tactics of the investigative body conducting the inquiry. Below we provide a brief overview of the types of investigations that arise most frequently in matters involving Members of Congress and congressional staff.
Inquiries conducted by DOJ often involve allegations of criminal misconduct and the compelled production of documents or information, and can therefore be particularly daunting for those unfamiliar with government investigations. Historically, many DOJ investigations involving allegations against public officials have been led by the Washington-based Public Integrity Section (“PIN”). In recent months, however, DOJ has significantly curtailed PIN’s authority and drastically reduced the number of prosecutors in the section. With PIN diminished, prosecutors in the 94 United States Attorney’s Offices across the country—which are led by political appointees selected by the President—have taken a much more active role in high-profile investigations and prosecutions. Many such offices have prosecutors focused on public corruption work.
In conducting their investigations, federal prosecutors rely on agents from Federal Bureau of Investigation (“FBI”) field offices throughout the country. As with PIN, however, DOJ recently announced the dissolution of the public corruption squad in its Washington Field Office, which historically led investigations involving Members of Congress and congressional staff. With many of DOJ’s historical practices and processes increasingly disregarded or under revision, it is more important than ever to consult experienced counsel before engaging with the Department.
In responding to a DOJ investigation, it is essential to determine whether the Member or staffer is a target, subject, or witness, which can inform an office’s response to interview and document requests and subpoenas. A person who is merely a witness might, for example, be willing to sit for an interview while a target or subject might seek to avoid an interview, seek some form of immunity from DOJ, or even invoke the protections of the Fifth Amendment. These are sensitive judgment calls that very much depend on context, but a critical first step is to determine the Member or staffer’s formal status.
Outside the executive branch, the Office of Congressional Conduct (“OCC”) and the House and Senate Ethics Committees have broad authority to investigate allegations of violations of congressional rules and other misconduct. Indeed, as we detailed in a prior client alert, investigators on the Hill may be moving toward a more active and transparent enforcement posture.
Though lacking subpoena authority, OCC relies on aggressive tactics to pursue inquiries focused on a wide variety of official and campaign-related misconduct. Since 2009, OCC has referred at least 135 matters to the House Ethics Committee for review, with such referrals often accompanied by lengthy reports and associated deposition transcripts. Although the office lacks adjudicative authority, OCC reports often read like indictments and can be very damaging to a Member’s reputation.
In addition to investigating matters referred by OCC, the House Ethics Committee can launch its own inquiries, which can lead to referrals to federal and state authorities, as well as recommended sanctions for consideration by the full House. During the 118th Congress, the Committee conducted fact-gathering in 41 separate investigative matters, leading to the authorization of more than 100 subpoenas and the publication of five public reports. Particularly in matters involving high-profile Members, the Committee’s recent activity may signal a desire to assert its authority while providing clear guidance to Members and private parties alike.
Like the House Ethics Committee, the Senate Select Committee on Ethics is empowered to initiate its own investigations. It is authorized to receive and investigate allegations of “improper conduct which may reflect upon the Senate, violations of law, violations of the Senate Code of Official Conduct and violations of rules and regulations of the Senate.” In 2024, the Committee reviewed 158 alleged violations of Senate rules, up from only 55 alleged violations in 2015. In the past, the Committee has tended to dig deeply into the matters under review, and its investigations have sometimes been protracted.
The FEC conducts investigations involving alleged civil violations of the federal campaign finance laws. Potential violations could include anything from routine reporting mistakes to major violations, such as personal use of campaign funds. In recent years, the FEC has been a quiet enforcement agency, due in large part to partisan and ideological gridlock, and the current lack of a four-member quorum. Even in quiet periods, however, FEC investigators pursue some matters aggressively, including “straw donor” contribution reimbursement schemes and cases involving contributions from foreign nationals.
Even if no formal action is taken by the Commission, FEC complaints and investigations can be costly and distracting. In response to a complaint, which can be filed by anyone, a candidate or other respondent may submit a response explaining why the FEC should find no “reason to believe” that a violation occurred. If at least four Commissioners find “reason to believe,” the agency proceeds either to settlement efforts or a full investigation. During this stage, the FEC can subpoena documents and witnesses. Based on the results of the investigation, the Commissioners then vote on whether there is “probable cause to believe” a violation occurred. If at least four Commissioners find probable cause, the FEC must negotiate concerning settlement before filing a civil action. However, very few cases go to court. The vast majority are settled at some point along the way, and many cases are dismissed by the FEC without demanding a settlement.
In responding to an FEC complaint, the critical first step is to get on top of the relevant facts and to file a persuasive motion to dismiss. A strong response to the complaint can result in dismissal and no further action, avoiding years of enforcement proceedings, legal fees, and political damage. Occasionally, it may make sense for an officeholder or candidate to take advantage of the FEC’s voluntary disclosure policy and to disclose a violation prior to the filing of a complaint. This can lead to an expedited resolution, but for obvious reasons, this is a step that should be taken only after careful consideration of the costs and benefits.
A relatively recent concern for Members and staff is the possibility of an investigation by the Securities and Exchange Commission (“SEC”) concerning insider trading. The Stop Trading on Congressional Knowledge Act (“STOCK Act”), enacted in 2012, was intended to subject Members, staff, and others to civil and criminal enforcement of insider trading laws, in instances in which material nonpublic information obtained through Congress or other federal branches of government is used for securities trading purposes. The SEC is known to have actively pursued STOCK Act investigations involving congressional employees, and we expect this to continue to be an area in which congressional offices must provide up-to-date training and be prepared to react promptly to any contacts from the SEC. DOJ may also pursue alleged STOCK Act violations.
Parallel investigations into the same conduct by DOJ, SEC, OCC or the Ethics Committees, and the FEC sometimes proceed simultaneously. In some cases, DOJ may ask the other agencies to stand down while the criminal investigation proceeds. For example, investigations involving former Representative Matt Gaetz (R-FL) and Senator Bob Menendez (D-NY) included inquiries from both DOJ and the relevant Ethics Committees. These parallel investigations are complex, presenting many legal and political risks. Discovery taken by one investigative body may be shared with another. The Member’s overall strategy will have to take into account how actions in one investigation may influence another.
In fast-paced, high-stakes, and potentially politicized investigations of Members of Congress or their staff, Chiefs of Staff must make smart decisions very early in the process based on limited information. The consequences of even a small mistake at the outset can be significant and long-lasting. Chiefs would be wise to spend time now thinking about how they would react to an investigation in the first critical hours and beyond.
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Covington has substantial experience representing Members and their staff in investigations. If you have any questions, or would like specific advice concerning an investigation matter, please contact these Covington lawyers.
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