From appearances and document leaks to preparing witnesses and challenging subpoenas, a group of Covington & Burling lawyers in a seminar today provided an insider guide to defending clients in congressional investigations.
Covington put together a three-lawyer panel—including two recent hires, former Secretary of Homeland Security Michael Chertoff and former Oregon Senator Gordon Smith—to talk about the nuts and bolts of congressional investigations.
“What makes this different from a courtroom is the fact that it’s being filmed,” said Chertoff, who joined Covington in March as senior of counsel. “So a lot of the preparation is, what do you wear, how you sit, do you stand to take the oath, how do you hold your hand.”
Chertoff said he has used a cushion during Capitol Hill testimony to prop himself up because some chairs are low to the ground. Chertoff said he never had counsel sitting with him. But having a family sitting behind the witness is not a bad idea, he said. “You want to look like you’re totally confident standing by yourself,” Chertoff said.
Smith, a senior advisor at the firm, also joined Covington in March.
The third panel member, former congressman Michael Barnes (D-Md.), who joined Covington in 2007 as senior of counsel, noted that Oliver North was wearing winter garb in D.C. in July during testimony on the Iran-Contra affair. A video clip played during the seminar showed Williams & Connolly partner Brendan Sullivan Jr. sitting next to North.
Speaking to a roomful of clients, none of the panel members identified their own clients by name as the attorneys explored preparing clients for hearings—you can't be afraid to anger a corporate CEO during mock questioning—and working with staff on setting up panels.
Barnes at one point mentioned a case where the client didn’t want to produce a particular document—Barnes did not identify details of the investigation—so Barnes and the client provided thousands of additional pages of documents in the hope the document would not be found.
The panelists all agreed that document leaks to the press are—perhaps unfortunately in the eyes of the defense lawyers—part of the process. Confidentiality agreements are rare.
Other speakers included Covington partners Robert Kelner, who chairs the firm’s election and political law practice group, and Benjamin Razi, a litigation partner who practices in civil, criminal and regulatory matters, and Michael Imbroscio, who practices in white collar criminal defense.
Kelner described congressional investigations as the “Wild West” in the sense that there are few concrete rules that define the process. “A lot of this in the Wild West is about rapport and credibility,” Kelner said.