Baker McKenzie's Congressional Investigations group co-leads Rod Rosenstein and Allison Murphy analyze the potential risks for organizations to consider in the lead-up to the November 3 elections in the United States.
Clients are already preparing for a potential wave of informal inquiries, document subpoenas and public hearings after the new Congress convenes on January 3, 2027. Congressional investigations always create legal, regulatory and reputational risk, but a perfect storm of heightened political division, legislative gridlock and executive branch resistance to oversight could make the next Congress especially active. If one or both houses shift from Republican to Democratic control after the November 3 elections, companies, high-profile individuals, universities and nonprofit organizations might face intense scrutiny.
Congressional staff members are busy identifying the industries, issues and individuals most likely to draw attention. Some potential targets have received letters and document requests from members who currently lack subpoena authority but may soon have the power to compel testimony and documents.
Congressional investigations move with a speed, intensity and public visibility that distinguish them from ordinary litigation or regulatory proceedings. Subpoenas often impose short deadlines. Hearings are televised and posted online. Media coverage can be ubiquitous. And the consequences rarely remain confined to Capitol Hill. A congressional inquiry can prompt regulatory scrutiny; trigger federal, state or foreign enforcement actions; generate civil litigation; and cause lasting reputational and financial harm.
Although congressional hearing rooms resemble courtrooms, they operate very differently. The committee chair is not a judge. Members are not neutral jurors. The rules of evidence do not apply. A witness’s lawyer cannot object. And there is no appeal. Committee members may use their five-minute question time allotment to score political points, shape public narratives, and generate media attention. A former member of Congress explained his decision not to seek re-election by saying, “I like jobs where facts matter. I like jobs where fairness matters. I like jobs where, frankly, the process matters.” Unlike a judicial trial, the legislative playing field is unbalanced, and the process is not necessarily truth-seeking.
Consequently, congressional investigations present challenges that many lawyers and witnesses have never encountered. Protecting an organization’s business, brand and people requires experience with the unique dynamics of the US legislative forum and the collateral risks that can follow.
For organizations and executives that may attract congressional attention, establishing a proactive response plan can mitigate congressional interest, reduce reputational harm and anticipate collateral risks. Key elements include:
- Assessing the likelihood and potential impact of an investigation
- Responding effectively to subpoenas, letters and document requests
- Negotiating scope, timing, confidentiality and production protocols
- Preparing witnesses for interviews, depositions and public hearings
- Anticipating related civil litigation and preserving defenses
- Managing related federal, state and foreign enforcement risks
- Coordinating public statements and stakeholder communications
- Ensuring compliance with lobbying disclosure and ethics obligations
Navigating congressional scrutiny requires multidisciplinary expertise and a deep understanding of how congressional committees operate and investigations can affect broader business objectives. Drawing on the experience of former government officials and lawyers who have served on congressional staffs and managed congressional investigations from start to finish, we can help you assess risk and navigate the legal, political and reputational aspects of legislative oversight. It's important to limit immediate harm while avoiding unnecessary exposure in other forums from congressional testimony, document productions and public statements.
We advise on:
- Anticipated congressional risks
- Informal congressional inquiries
- Subpoenas
- Transcribed interviews and depositions
- Hearings
- Engagement with members and staff
- Public messaging
- Investor and stakeholder communications
- Collateral litigation and enforcement risk
Impacts of the 2026 US Midterm Elections
The outcome of the US midterm elections could bring potential changes beyond investigations activity. Whether looking to prepare for potential investigations, or tax, antitrust or trade impacts, please reach out to one of our US Midterm Elections Task Force contacts.