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.
Whether an investigation is partisan or bipartisan, it is important to identify any committee members who will be receptive
to your company's story. The company's lobbyists provide relevant political background to your outside counsel for this purpose.
Your counsel can then cautiously work with the member's staff to understand the committee's areas of focus and to provide
the staff with information, documents, and briefing books that will help prepare the committee member for the hearing.
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 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