So far, 2013 is a very good year for attorneys with a practice in congressional oversight and investigation, as McDermott, Emery and Will partner Stephen Ryan tells it. Capitol Hill has had an abundance of ongoing investigations—a string of weeks in which one big revelation after another got congressional investigators leaping.
There's the Justice Department pursuit of Associated Press and other journalist records during leak investigations, broader concerns about government surveillance and the secrecy of the Foreign Intelligence Surveillance Court, and the Internal Revenue Service targeting certain political groups for increased scrutiny on applications for tax-exempt status.
Legal Times sat down with Ryan, a former general counsel to the U.S. Senate Committee on Governmental Affairs, who taught about congressional investigations at Georgetown University Law Center, to find out how all of this will affect investigations and whether it means any change in his legal strategy. He represents clients before every investigatory committee.
NLJ: How does this compare to what you've seen in the past? Ryan: There have been periods that look just like this. If you want to go back historically, 1986 to 1988 looks just like this. The end of the Bush Administration looks just like this. So what’s happened is, in the first year of this new administration, we’re having hearings that look like the seventh and eighth year.
So what does that mean to you that it is happening now instead of the seventh year? You have a situation not unlike those time periods, where the House, in this case, being in Republican hands is focusing its oversight and investigative activity at the administration. And there’s been a cornucopia of delights for the Republicans. Point 1, the [Secretary of Health and Human Services Kathleen] Sebelius issues with regard to Enroll America. Point 2: the AP story. Point 3: the FISA issues. Point 4: the IRS activity and the continuation of the various oversight activities that Darrell Issa is doing. All of those things are intended to show an administration in disarray, which is the traditional role of the opposition party.
So which of these investigations and chairmen have the staff to keep this up for the next three or four years? I think all of them have healthy, budgeted staffs, so I don’t think there’s a lack of resources. However, from a congressional investigative standpoint there’s a big difference between investigating and then having a hearing to execute people—see [Senator ] Carl Levin—and having a congressional investigation and having a hearing at which you’re still hearing and are not as developed as that. And I think the difference is a profound one. If you’re really going to do congressional investigations well you have to take the time to do it, you have to master the documents, you have to interview the witnesses, you have to get the nuances down. I think the distinction today is the level of congressional investigations currently does not have the professionalism of prior decades except in certain pockets where that excellence is being done. That being said, there are very bright competent people handling all of these various cases, and the question is do the chairmen and members have the patience to allow the staff to develop those things or are they anxious to get out and have the hearing as quickly as possible.
Where are those pockets? Without saying exclusively who they are, the Senate Permanent Subcommittee on Investigation I think is the most well-oiled machine in the Congress in terms of people who have been there for decades doing investigations, who understand the hard seat time of staff that has to go into such an investigation, and are willing to take on difficult and complex issues and see them through the difficulties and complexities. The House Energy and Commerce Committee has always been that committee in the House of Representatives, whether it was under [Representative John] Dingell and [Representative Henry] Waxman, or now under [Representative Fred] Upton, I think those staffs traditionally have the spirit, the resources and the skills to do those things. House Committee on Government and Oversight and Reform, has always had a storied history of investigative work if you go back to Chairman Brooks, the tradition of that committee was set for decades. There have been points at which that tradition has been broken… [but] under [former Representatives] Tom Davis and Bill Clinger and under [Representative Darrell] Issa they are a formidable investigative committee.
Where are these investigations headed and what’s going to come next? I’m most concerned about the IRS … If the conclusion from the IRS investigation is we ought to put the IRS on a diet and starve it and not give it the resources to carry out its function, I think that would be an incorrect conclusion. The opposite conclusion would be equally incorrect, that we don’t take corrective action as a people to address the inadequacies of the agency. I find that one of the most complex situations that’s being treated in the most simplistic fashion. Complex because at the end of the day it’s the Supreme Court having thrown a monkey wrench into the nonprofit law with Citizens United that triggered this wave of applications that the agency handled very badly … If you look back in history this is not the same thing as the Truman or Nixon interferences. I think that to me, the outcome of the investigation of the IRS is actually substantively very important to the American people, and it’s not just an issue of gotcha with regard to Tea Party. The challenge for an investigative committee is you do the gotcha work but you also come back with a resolution that makes sense for the American people so for the next couple of decades we actually collect the revenue we need to run the government still, notwithstanding these problems. When I worked in Congress, that was always the challenge, it wasn’t enough to get the headline. My chairman didn’t need a headline, because he was John Glenn, and so I worked for an ideal person who was interested not just in the gotcha but what are we going to do about it. Once we establish what the facts are, how do we go forward. I think if there’s a weakness to congressional investigations now, it’s the lack of the latter as opposed to the former. It’s connecting the dots so we end up in a better place.
Does any of what’s going on in the news and on the Hill change the strategy behind representing government and private sector witnesses? Right now, if I contrasted 2012 with 2013, 2013 is a very good year for people who do what we do, compared as 2012 wasn’t a very good year at all for people who do what we do. So it’s a sine curve where we reached a very low point last year and a high point this year in terms of the level of activity. The strategies remain consistent. First of all, it’s not a lobbying exercise to respond to a congressional investigation. Lobbying may form a component of the tactics by which you respond but if you confuse responding to the investigation … the key to representing private sector entities, particularly businesses is to coordinate the legal, business, political and press aspects of it. It’s not to have a strategy that only a lawyer could love because it addresses the political part, or the businessman could love because it addresses the business part, or the vice president of communications. It has to be a strategy that unites all of them and effectively communicates to the public how our actions are either consistent with our values and we’re defending them, or we failed to be consistent and we have to rectify that and come clean with it. I think it’s very different when it’s an individual. … There’s human tragedy in the defense of people, and you have to be very sensitive to that human tragedy when you’re dealing with it.
What are you telling clients about current congressional investigations? In an environment where the Congress’ attention span may move from one issue to the other, in the current climate you have to say one of this stories could dominate the news and you could have a steady state of concern that you’re exposed because it’s day after day the same story and new aspects of it. Now, there’s so many stories to compete that it does indicate to you that you want to bide your time and be as careful thoughtful as possible about what you say and do. You want to cooperate with the committees but you also have to take into account what is today’s issue may not be tomorrow’s issue and that may benefit you. Or hurt you, depending on where the issue goes. It’s very volatile. The Verizon story pops out into the middle of things and frankly it’s a very compelling issue that’s going to take a bunch of committees off in a direction that I don’t think they were going a week ago.