The midterms are finally behind us, and Democrats will be taking control of both houses of Congress for the next two years. On election night, even before all results were in, Rep. Robert Garcia (D-CA) posted a press statement addressing the administration, vowing to take on “corporate corruption,” and the message: “Lawyer up.” With Garcia expected to take over chairmanship of the House Oversight and Government Reform Committee, the message is clear. Congressional investigations are coming soon. Given that the statute of limitations for false statements or obstruction of congressional investigations is generally five years, businesses with federal government ties should prepare for and respond to investigations with an awareness that the U.S. Department of Justice (DOJ) may be evaluating their actions well beyond the 2028 election.
As Democrats take over the legislative branch, oversight priorities and focal points will likely shift, especially for government contractors and other businesses involved in matters with the federal government that have received public attention during the last few years. For example, contractors working on administration priorities, such as immigration enforcement, other Department of Homeland Security (DHS) initiatives, and contract award decisions, terminations, and administrative actions initiated by the White House may all be potential targets of congressional investigators.
Oversight may not just focus on events in the headlines. Congressional investigators also frequently examine more routine uses of federal funds to determine whether laws or programs are working as intended and being administered effectively, efficiently, and economically. As a result, contractors and other businesses with federal ties may get requests for information that relate to new interest in the status of federal program objectives, appropriateness of spending, and the quality of government decision-making. For example, congressional investigators focused on the military and its leadership may issue inquiries to the contractors, think tanks, educational institutions, and other entities involved in defense programs perceived to be behind schedule.
Practical Implications
Congressional inquiries often begin with a letter or informal staff outreach, rather than a subpoena, and develop into a request or demand for documents, interviews, and private or public testimony. From the outset, contractors should coordinate their legal response, congressional engagement, and public communications with counsel experienced in handling congressional investigations.
During the next several weeks before the new Congress begins in January, businesses with federal connections have a window to assess their exposure, organize records, consider proactive engagement of members of Congress, and establish a response plan in the event of an inquiry next year. Waiting for a subpoena or request for information leaves less time to establish the facts and prepare an accurate, coordinated response. Businesses and entities may want to:
- Identify contracts likely to attract attention. Assess projects and relationships involving contested policies, high public visibility, questions about the circumstances of an award, or contacts with political appointees connected to procurement activity.
- Establish a response team ready to address any inquiries that arrive. Designate a response leader and define responsibilities for legal, compliance, contracts, records management, communications, and the relevant business teams. A coordinated process helps keep document productions, witness preparation, and public statements consistent.
- Assess document preservation and production capabilities. Confirm that the company can preserve, locate, collect, and produce relevant records, including email and other electronic communications. Identify the systems, personnel, and resources needed to respond.
- Prepare leaders for congressional testimony and interviews. Explaining contract performance or use of federal funds to an agency customer is different from explaining it at a public hearing, while facing questions with cameras rolling. Similarly, closed-door interviews with congressional investigators can be extremely challenging. Companies may want to work with counsel to identify potential witnesses and prepare them to describe the company’s role clearly and accurately.
Five-Year Statute of Limitations for Obstruction of Congress
While Congress’ ability to impose penalties or sanctions may be limited during the remainder of this administration, its enforcement and oversight authority still must be taken seriously. Making materially false statements or concealing material facts during a congressional investigation can be prosecuted as a crime under 18 U.S.C. § 1001. Further, corruptly obstructing or impeding an investigation by either the House or Senate, or a committee or joint committee, can lead to criminal fines or imprisonment under 18 U.S.C. § 1505. Importantly, the statute of limitations for violations of both laws is five years. This means that, if a person makes false statements or obstructs a congressional inquiry during the upcoming term, DOJ could wait to initiate a criminal investigation until well after the 2028 election cycle. While some types of obstruction or false statement allegations may not be enforcement priorities for DOJ today, those same allegations may be seen in a different light by a new administration.
How Husch Blackwell Can Help
Husch Blackwell’s bipartisan congressional investigations team includes former federal and state prosecutors, former senior executive branch staff, and former senior congressional committee staff with experience issuing subpoenas and responding to congressional inquiries. Working with the firm’s government contracts, government affairs, white collar, and internal investigations practices, the team helps contractors address the legal, political, and reputational dimensions of congressional scrutiny.
For assistance assessing congressional investigation readiness or responding to an inquiry, contact Todd Gee, Kyle Gilster, Cormac Connor, Elliot Doomes, or your Husch Blackwell attorney.
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