Congressional investigations have continued to play a significant role in the 117th Congress. In February 2021, we predicted that the Democratic majorities in both the House and the Senate would target investigations at the private sector, and this prediction turned out to be correct. Already in 2021, committees in both chambers have launched investigations across a broad range of subjects.
Congressional investigations are deeply infused with politics. Although investigations may seem to proceed by familiar legal process—including document productions and witness testimony—there is actually very little due process in congressional investigations. There are no motions to dismiss, protective orders, or limited discovery orders. There are, however, some rules, and the rules that exist are important.
At the start of a new Congress, the House and Senate, and their committees, adopt internal rules that govern their operations, including rules that affect congressional investigations. These rules are often revised from Congress to Congress. To assist our clients responding to congressional investigations, this alert summarizes House, Senate, and key committee rules relevant to investigations for the 117th Congress, with a particular focus on the rules related to subpoena authority, depositions, and, where applicable, confidentiality.