For months, Members of Congress, commentators, and companies have previewed what Democratic control of the House and Senate would mean for congressional oversight. Yesterday, voters made it official. In two months, Democrats will hold the gavels in both chambers—and the subpoena power that comes with them.
As we have previously written, for the past two years, congressional Democrats have sent dozens of letters requesting documents and information from the Trump administration and private parties. Although these letters clearly signaled Democratic investigative priorities, congressional Democrats in the minority lacked the authority to compel compliance. Yesterday’s election results changed that, and Democratic leaders have already made clear that they intend to pursue aggressive investigations, including through compulsory process.
But congressional committees have limited staff and resources, and only some investigative targets will draw sustained attention. The process of prioritization begins now. Incoming chairs and their staffs will use the period between now and January to hire and reorganize staff, prepare committee rules, revisit inquiries launched in the minority, assess potential targets and investigative subjects, and decide which matters to prioritize in the majority.
That process will not wait for the new Congress to be seated in January. Incoming chairs may press for additional documents or information in the coming weeks. Indeed, shortly after Republicans won the House in November 2022, incoming Republican chairs began sending letters demanding documents and warning of compulsory process once the new Congress convened. Even absent any immediate pressure, it is prudent to use the next two months to prepare. Below we identify a series of questions companies should consider in the aftermath of Election Day, along with steps they can take in the weeks ahead to be as prepared as possible when the new Congress convenes.
- Have you already received Congressional outreach? Assume existing minority requests will carry into the new Congress. As we wrote in May, previous voluntary requests could easily become tomorrow’s congressional subpoenas. Incoming Democratic chairs may move quickly to renew those requests once the new Congress convenes.
- If you previously received a request, does your response still hold up? Revisit prior responses to Democratic outreach, including any unfulfilled requests for documents or information. Incoming chairs who viewed prior voluntary responses as insufficient are likely to renew their requests, this time backed by the threat of compulsory process.
- Are you prepared to preserve potentially responsive information? Assess preservation obligations now. Ranking Members sent a series of document preservation letters this year, and, as we previously explained, a minority inquiry can trigger preservation duties. Preservation efforts should account for encrypted messaging applications, text messages, personal devices, and other communications outside ordinary retention systems.
- Even if you have not received a letter, are you a potential target? Assess exposure before congressional outreach arrives. Democratic Members have already identified subjects, transactions, industries, relationships, and organizations that interest them. Potential targets can use those signals now to gauge the overlap between their activities and the incoming majority’s investigative priorities.
- Could you be swept into an investigation focused on someone else? Consider the possibility that an existing congressional investigation could expand to include you. An organization or individual that has not received congressional outreach may nevertheless possess information a committee wants about the administration, a business partner, an investor, a donor, a competitor, or another third party. Companies should consider not only any interest Congress has expressed in them, but also the relationships and communications that could make them a source of information in an investigation focused elsewhere.
- Are you prepared for your response to become public? Be aware that any congressional response can carry legal, communications, government affairs, and business consequences. While congressional investigations have always presented a risk of selective disclosure of company documents, Members and committees are increasingly releasing recipients’ written responses in full, underscoring the need to consider every congressional response carefully before submitting it.
- If a committee contacted you tomorrow, would you be ready? The first twenty-four hours after a congressional inquiry arrives are critical, and unprepared organizations often make avoidable mistakes simply because the relevant internal teams are not coordinating. At a minimum, identify now the immediate response team responsible for an inquiry, the senior leaders who could become central to document requests, staff interviews, briefings, or testimony, and the process for coordination among the relevant internal teams. Congressional investigations follow their own rules and political dynamics, distinct from litigation and agency enforcement, and that preparation should include identifying outside counsel with substantial experience handling them.
Even for the best-prepared companies, a key question in advance of the 120th Congress will be which investigations incoming Democratic chairs choose to prioritize. Committees inevitably have more potential subjects than they can pursue with equal intensity. Some potential targets move toward the top of the list, while others remain on the periphery. Though congressional investigations can be notoriously difficult to predict, several considerations repeatedly shape which targets a committee pursues and how aggressively.
- Prior engagement with committee staff. A company’s responsiveness and history with a committee can shape the trajectory of an inquiry. In many cases, committees direct the most scrutiny at recipients they view as most recalcitrant. Early engagement can sometimes help persuade committee staff that their resources are better directed elsewhere, but it can just as easily put a company on staff’s radar. Whether, when, and how to engage is a strategic judgment that turns on the facts.
- Public posture. Any public statements by a company or its representatives can draw the attention of a committee or become part of the committee’s investigative narrative. Even companies that have not received a letter should recognize that a single press release, earnings call remark, or social media post can be enough to invite congressional scrutiny.
- Availability of information elsewhere. Committees investigating the Trump administration will certainly face resistance from executive branch agencies. As a result, committees are already preparing to seek the same information from private parties that dealt with the Trump administration, such as government contractors and donors.
- Connection to a legislative objective. A potential investigation or hearing may become more attractive if an inquiry can help advance a legislative proposal or broader policy agenda, such as proposals concerning data centers or prediction markets.
- Fit with the committee’s broader narrative. The stronger the connection between a potential target and a committee’s central investigative theory, the more attractive the target may seem. Companies whose activities illustrate a story a committee wants to tell—in letters, hearings, or public statements—are more likely to move up the list.
Companies preparing for potential Democratic congressional investigations should use the coming weeks to gauge their exposure under the incoming majority’s priorities, address potential vulnerabilities, and prepare for congressional outreach before it arrives.
Covington will continue to monitor congressional oversight developments as the new Congress takes shape. If you have questions about the issues discussed in this alert or would like assistance preparing for potential congressional inquiries, please contact a member of our Congressional Investigations practice.
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