Divided Congress Shifts Oversight In Opposing Directions
January 2, 2023, Law360
Commentary by Rob Kelner and Brian Smith was included in a Law360 article discussing the implications of a newly divided Congress, where House Republicans hold a majority and Senate Democrats expanded control.
The incoming Oversight Committee chairman and incoming Judiciary Committee chairman have already sent out a significant number of letters and requests since the election, reiterating demands for information and preservation of documents.
Rob explained that while roughly 75% of oversight might target the Biden administration, those investigations can "nonetheless draw in corporations." He continued, "I think sometimes people think you either have an investigation of Biden or you have an investigation of a company, but some segment of those Biden investigations will end up involving companies."
"You can imagine in some cases companies being in a pretty tricky position where they'll have to modulate their message for the House to make sure that it will also work for them well in the Senate on the other side of the same issue," Rob added. He expressed there could be times when there are investigations in each chamber from "diametrically opposite ideological perspectives" on the same issue.
Brian believed Republicans have signaled that virtual hearings are done, and noted that in-person hearings can often be more challenging for witnesses. He said preparation for testimony is a "curriculum" that involves three or four days of study for the witness.
"Even people who have testified before, even if they've testified many times in other settings, there's nothing else like a Congressional hearing where it's live, on TV, broadcast in real time, under oath and with a snippet of time in which you have to get a response in, a very limited snippet," Brian remarked. "It's unlike anything else even for people who are really skilled at other things."
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