How to Prepare

The first step is to understand what type of investigation you are facing. Some investigations are primarily fact-finding exercises. In these cases, Congress may issue requests for documents (often in the form of letters from the committee chair), without requiring testimony.

In other cases, Congress will issue subpoenas seeking testimony. In those instances, it is critical to understand the political landscape of the investigation. In some cases, the investigation may be partisan or bipartisan, in which some members of the committee may be friendly to your industry or company. If the investigation is nonpartisan, the committee will likely take a more uniform view.

As you prepare your witness or witnesses to testify, bear in mind that congressional staffers will be scouring the Internet for publicly available information about the witnesses. You will need to do the same, so you or the witnesses are prepared for any potentially embarrassing questions. Remember, it is critical that your witness stay on script. In order to do so, your team must anticipate as many of the committee's questions as possible, and prepare exhaustively.

At the same time, some questions will inevitably arise that the witness simply does not expect, and has not prepared for. In those cases, it is critical that the witness remain scrupulously truthful and accurate. While it may seem awkward for the CEO to not know the answer to a question, it is far better to respond, "Senator, we will get back to you on that," than to make a misstatement. In addition to violating the general prohibition on making false statement to the government, lying to Congress is a separate indictable offense.

After testimony concludes, Congress usually writes a report stating its findings. In the most successful congressional investigations, no further action is taken beyond the report. In some instances, legislation may be passed that relates to the issue being investigated. In the worst-case scenarios, congressional investigations can spawn criminal investigations brought by the Department of Justice, relating either to the subject matter of the congressional investigation, or relating to allegations that witnesses lied to Congress.

The Aftermath

The political pressures on Congress to reduce government spending on healthcare will only increase over time. These pressures inevitably lead to efforts to identify "wasteful spending," with a ready link to corrupt practices. These factors, coupled with the public perception of high pharmaceutical profits, make pharmaceutical manufacturers a likely target of increased congressional focus. Because congressional investigations tend to unfold very quickly, the best practice is to have your "first aid kit" ready—know who your experienced lawyer will be, who your lobbyists are, and your press relations consultant, so you have your team ready when and if your company receives a congressional subpoena.

David Ryan is Partner and Danielle Pelot is Associate in Nixon Peabody's Government Investigations and White Collar Defense practice. They can be reached at dryan@nixonpeabody.com
and dpelot@nixonpeabody.com
, respectively