“Lawyer Up”: Congressional Investigations Are Coming – and They Require a Different Playbook

Key Takeaways:

• The Nov. 3 midterm elections will bring a new wave of congressional investigations. Congress has extraordinarily broad investigative authority, and a company does not need to be accused of wrongdoing to get pulled into an investigation.
• Congress operates under its own rules and procedures, and congressional investigations present challenges that are very different from executive branch investigations and traditional litigation.
• A congressional investigation is a distinct legal, political, communications and reputational event that presents various risks that all must be managed simultaneously.

The results of the midterm elections will significantly change the congressional oversight landscape for at least the next two years. Members of Congress have been previewing their investigative priorities for 2027, and congressional letters requesting information during this term may ultimately become the bases for subpoenas when the 120th Congress convenes Jan. 3, 2027. With control of the House and Senate changing to the Democrats in January 2027, Democrats will exercise increased oversight of the executive branch and the private sector. Incoming Oversight Committee Chairman Robert Garcia made his intentions particularly clear on election night when he issued a two-word statement: "Lawyer up."[1] Public and private companies and executives in virtually every industry should expect increased scrutiny of their roles in transactions that fit the new Congress's emerging legislative agendas. And often in such intense oversight periods, virtually no subject matter is off limits - artificial intelligence, healthcare, private equity, private credit, consumer and investor protection, energy, financial services, government contracts, tariffs, trade and tax policy and relationships with the Trump administration will all be fair game.

While some hearings may be friendly - when Congress is interested in learning about a topic or advancing legislative priorities - hearings associated with a congressional investigation are often unfriendly, politically charged and even highly adversarial. Congressional inquiries present challenges that are unique from any other government investigation. As a separate and coequal branch of government, Congress will often seek information that is the subject of pending parallel government investigations. Congress operates under its own rules and controls the forum in which many disputes are negotiated. Congress is simultaneously the investigator making the demand and the arbiter of whether its demand is appropriate. And most importantly, investigations often unfold under the glare of intense media spotlight and televised hearings.

A response plan built only for executive branch investigations or traditional litigation will fall short and leave responding parties subject to a wide range of economic, criminal, business and reputational risks. Therefore, any party that believes they may become an investigatory target should act now to prepare a coordinated response and proactively identify potential strategies to engage, respond and minimize risks.

I. Congress's Investigatory Authority and Priorities

Congress's investigative authority comes from its power to legislate granted in Article I of the Constitution. The Supreme Court has long recognized that, even though Article I does not expressly refer to investigations, the "power of the Congress to conduct investigations is inherent in the legislative process."[2] The Court has also noted that the "power of inquiry-with process to enforce it-is an essential and appropriate auxiliary to the legislative function."[3] Accordingly, many standing committees in each chamber have authority to conduct investigations.[4]

This investigative authority is very broad. Typically, a congressional investigation is valid if it serves a legislative purpose - that is, if the investigation is "related to, and in furtherance of, a legitimate task of the Congress."[5] This "legislative purpose" requirement is generous,[6] and it is easy to see how any subject matter, industry, company or individual can be in Congress's crosshairs.

With Congress changing control, congressional committees will have new leadership and will likely ramp up investigations across a wide range of industries. Democratic leaders have also made clear their intent to conduct aggressive oversight of the Trump administration. These investigations will likely extend beyond government officials to public and private companies and individuals who have interacted with the administration, made donations to administration projects or priorities or received government contracts to perform work. Importantly, even companies that Congress does not suspect of any wrongdoing could be drawn into investigations because they possess contracts, communications or other information relevant to Congress's investigation of the administration.

II. Congressional Investigations Require a Different Approach

A congressional investigation presents very different challenges than executive branch investigations and traditional litigation. These differences include Congress's different tools and procedures, the publicity of committee hearings, a significant difference in the manner of questioning and issues concerning common-law privileges.

A. Different Tools and Procedures

A congressional investigation is not traditional litigation. Congress does not file a complaint. There are no Rules of Civil or Criminal Procedure or Rules of Evidence, and congressional investigative requests are not subject to the familiar discovery rules and proportionality requirements that govern litigation. Nor must a committee satisfy the same thresholds that constrain other forms of government investigations. For example, a congressional committee need not establish probable cause before issuing a subpoena, unlike federal law enforcement seeking a search warrant.

A congressional investigation could begin with an email message, a press release, a social media post or an interview with a member of Congress, followed by a letter with the committee's or member's narrative of the issue. The letter may seek responses to questions, the production of documents and the scheduling of a briefing, on-the-record testimony and possibly a hearing, all with a demand for a response within two to three weeks from the date of the letter. A committee or member of Congress can initiate an investigation based on media reports, one or more whistleblowers, third-party complaints, pending state or federal litigation or an agency enforcement action.

Similarly, while a committee hearing is not a formal trial, members of Congress will make legal and factual allegations and conclusions. There is no judge or jury, there is no opportunity to cross-examine the committee and counsel cannot control the questioning through familiar objections available in litigation. The investigating committee controls the proceedings. Committee members, and sometimes staff, ask the questions, and counsel's role is far more limited than in a courtroom. For example, in a House committee hearing, the rules provide that counsel may only advise a witness of their constitutional rights.[7]

The practical consequence of this environment is that traditional litigation instincts can be counterproductive in a congressional investigation. For example, when faced with an overbroad request or a discovery dispute, responding parties must address issues relating to scope and timing directly with committee staff or members of Congress. And witnesses cannot treat a public hearing as though it were simply another deposition. Responding parties must therefore understand not only the legal rules governing the investigation, but also the committee's objectives, the interests of the individual members of Congress and the political and public environment in which the investigation is unfolding. An ability to effectively interact with members and staff on both sides of the aisle can be critical.

B. Public Hearings and Media Attention

As the most visible part of a congressional investigation, committee hearings present unique risks. Congressional hearings are public, often with significant media attention inside and outside the hearing room. All hearings are broadcast live on the committee's website and are available to be viewed long after the hearing date. A witness's written statements are often made public on the committee's website. In addition, documents produced by witnesses are often made public with no prior warning. Several months or years later, committees will publish a hearing record that includes the written and oral testimony, questions for the record and materials submitted by members during or after the hearing, including articles, reports and written statements for the record prepared by interested parties.

During a trial, counsel examines a witness to develop a factual record for a limited audience. However, in a congressional hearing, a witness's answers will be scrutinized not only by members of Congress and committee staff, but also by regulators, shareholders, customers, employees, the media and the public. A brief hearing exchange between a member of Congress and a witness that has relatively little legal significance can nevertheless create significant reputational or business consequences and may cause state or federal regulators to initiate their own inquiries. In addition, it is certainly possible that information revealed in a hearing can incentivize a private plaintiff to initiate litigation.

Witness preparation must account for this reality. It is essential that a witness testifying before Congress knows the factual record. But factual preparation alone is not enough. The witness should be prepared for adversarial and repetitive questioning, aggressive politically sensitive questions, and be ready to provide accurate answers without being drawn into confrontation. Extensive witness preparation, including mock hearing practice sessions, is crucial to counter any inaccurate political narrative and tell their story to the public.

C. Privilege Considerations

Congress has long taken the position that it is not bound by common-law privileges such as the attorney-client and work-product privileges.[8] Although committees sometimes choose to nevertheless recognize these privileges, they are not guaranteed to do so. Congress's rationale for its position is that each chamber has authority to determine the rules of its own proceedings and that its investigative authority should not be limited by privileges created by the courts.

Recent judicial opinions, however, have cast some doubt on the scope of Congress's position. In Trump v. Mazars, the Supreme Court observed in July 2020 that recipients of congressional subpoenas "have long been understood" to retain common-law privileges.[9] More recently, in July 2026, the D.C. Circuit echoed the Supreme Court's language in United States v. Navarro, noting that subpoena recipients "retain common law" privileges.[10] Importantly, neither decision definitively held that common-law privileges apply in congressional investigations, and the law remains unsettled.

The practical consequence is that privilege assumptions taken from traditional litigation may not be respected by congressional investigators. A seasoned hand is necessary to protect a witness's privilege. Rather than simply withholding privileged material, responding parties should identify potentially privileged material and proactively consider how to present their privilege claims to the committee. Responding parties must also account for the potentially very serious negative effect that producing privileged material could have on parallel litigation, regulatory investigations and other proceedings. Opposing parties will almost assuredly take the position that the production of privileged documents and information to Congress amounts to a subject matter waiver of the relevant privilege.

III. Preparing for Congressional Investigations

Any company, executive or individual who believes that they may become the target of a congressional investigation should act now. Preparation before Congress sends an inquiry allows for a proactive and thorough response. By contrast, merely reacting to a congressional inquiry forces a party to respond under significant time pressure and invites unnecessary risk.

Identify potential areas of exposure. Companies should first identify the activities most likely to draw congressional scrutiny. This assessment should consider interactions with the federal government, significant government contracts or funding and issues that have already attracted attention from congressional committees - such as donations to efforts supported by the administration, including the ballroom construction and America 250 events. Companies should also monitor investigations involving competitors and others in their industry. An inquiry directed at another company may provide an early indication of what Congress will do next. And when there is sufficient risk, companies should understand the factual record thoroughly by identifying activity likely to receive scrutiny, preparing the employees and executives involved with the assistance of seasoned counsel and gathering the relevant documents.

Establish a response plan. Companies should establish a plan for responding to a potential congressional inquiry. Such a plan should include the preservation of relevant records, internal fact gathering with the involvement and advice of counsel, and procedures for communicating with committees, members of Congress and congressional staff. Depending on the inquiry, a response may require coordination among multiple internal departments, including legal, government relations and communications, and may include senior business leadership.

Evaluate parallel exposure. Finally, companies should evaluate with counsel whether the conduct likely to draw congressional scrutiny presents exposure in other proceedings. Congressional investigations frequently involve issues that attract the attention of the Department of Justice, federal or state regulators and shareholders. A response that advances a company's position before Congress could create issues in a parallel investigation or litigation, and vice versa. Because of this, it is critical that companies engage counsel that use a multidisciplinary team that develops and pursues a strategy that accounts for all aspects of legal risk that arise from a congressional investigation.

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Companies and individuals that believe they may face congressional scrutiny should act now to assess their potential exposure and prepare a coordinated response before an inquiry arrives. BakerHostetler's bipartisan and multidisciplinary Congressional Investigations team draws on experience in Congress, federal agencies and white collar investigations to help clients anticipate congressional scrutiny, respond effectively and manage the legal, political, business and reputational risks. Our team includes former members of Congress on both sides of the aisle, former congressional and congressional committee staffers intricately familiar with the applicable rules and procedures that govern congressional investigations, and white collar investigations defense lawyers skilled in preparing clients for interviews and testimony and in evaluating litigation and investigation risks. Our team also includes the former director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, Steven M. Dettelbach, who has testified in numerous congressional hearings.

[1] Oversight Democrats, Incoming Oversight Chairman Robert Garcia Statement After Democrats Secure Majority in the U.S. House of Representatives (Nov. 3, 2026), available at https://oversightdemocrats.house.gov/news/press-releases/incoming-oversight-chairman-robert-garcia-statement-after-democrats-secure-majority-in-the-us-house-of-representatives.

[2] Watkins v. United States, 354 U.S. 178, 187 (1957).

[3] McGrain v. Daugherty, 273 U.S. 135, 174 (1927); see Trump v. Mazars USA, LLP, 591 U.S. 848, 862 (2020) ("Without information, Congress would be shooting in the dark, unable to legislate 'wisely or effectively.'") (quoting McGrain, 273 U.S. at 175).

[4] Senate Rule XXVI(1); House Rule XI(1)(b); see 2 U.S.C. § 190d(a) ("In order to assist the Congress" in its analysis of enacted laws and formulation of new laws, "each standing committee of the Senate and the House of Representatives shall review and study, on a continuing basis, the application, administration, and execution of" its laws, "the subject matter of which is within the jurisdiction of that committee.").

[5] Watkins, 354 U.S. at 187.

[6] Id. ("The power of Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.").

[7] House Rule XI(2)(k)(3) ("Witnesses at hearings may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights.").

[8] See, e.g., H.R. Rep. No. 116-125 at 31 (2019) (concluding that "common law privileges . . . are not valid reasons to withhold documents subject to a valid subpoena from Congress, which derives its investigative authority from the Constitution"); S. Rep. No. 105-167 at 586 (1998) ("There is no binding authority that the Senate and its committees are legally required to recognize common-law privileges such as the attorney-client or work-product privilege.").

[9] 591 U.S. at 863.

[10] 182 F.4th 1005, 1010 (D.C. Cir. 2026) (quoting Mazars, 591 U.S. at 863).