Editor: Please tell our readers about your experience with the House Ethics Committee from January 2006 to August 2008.
O'Reilly: It was a terrific experience. I had the opportunity to work with a number of dedicated and committed members and staff, who were very interested in finding ways to improve the ethics process on the Hill, both from the advice and education standpoint as well as from the investigatory standpoint. I thought the Committee was able to make great progress during that time period.
Editor: Why is the role of counsel to a witness before a congressional investigating committee different from that of counsel to a witness in litigation?
O'Reilly: Largely because of the differences in terms of both the goals and the processes of the two types of matters. A congressional investigation often has different goals from litigation. Litigation is very outcome driven - absent a settlement one side's going to win and one side's going to lose. There are a lot of evidentiary and other rules, which came about over the course of the development of the rules of evidence and case law that matter to the courts in terms of decision-making and permitting juries to make decisions. Congressional hearings generally don't have such defined outcomes. While there are some rules about the types of relevant evidence or testimony governing hearings, the congressional investigation process is largely a less rule-bound process.
One really has to understand the rules and the process on the Hill in order to understand that those rules and those processes are largely, if not exclusively, for the benefit of the committees in terms of the work that they're trying to do, and there is much less in the way of protection afforded to witnesses and their counsel than one might find in litigation.
Editor: Such as the attorney-client privilege?
O'Reilly: The attorney-client privilege generally is available to witnesses in congressional investigations. Congressional committees may not be required by congressional rules to respect the attorney-client privilege, but as a practical matter they generally do. Where it is clear that what the committee is interested in is privileged on its face, then the witness has the ability to refuse to provide the information, although that risks a contempt proceeding.
Editor: I suppose as counsel you would speak to the staff ahead of time if you foresee that a privileged matter may come up in the questions?
O'Reilly: It's important from the beginning to the end of any investigation to speak to the staff as often as you reasonably can. Neither they nor the committee members want any surprises. If you think there is a significant attorney-client privilege issue in terms of information being requested, you need to raise that beforehand with staff because quite often there are ways to avoid some of those issues without ending up in a situation where the witness potentially faces a contempt proceeding.
Editor: Does the same reasoning apply to trade secrets where the committee is probing into a proprietary area of a company?
O'Reilly: There should be a recognition and respect for any company's intellectual property, including its trade secrets, such that committees shouldn't force witnesses to disclose information in open session. There may be ways to take testimony in executive session if disclosure of the trade secret is somehow necessary for the purposes of the investigation, or there may be other ways to satisfy the committee in terms of the information that it needs, once it understands that there are trade secret disclosure issues that the witness really needs to avoid.
Editor: Why is it important to ascertain what the purpose of the investigation is before preparing a witness to appear before a committee?
O'Reilly: As with litigation, understanding the reasons why the proceeding is undertaken and what underlies the questioner's motivation is vital. The same is true in litigation although the motivation is often clearer. In a congressional investigation the motivation is not always clear - the more you can learn from congressional staff members about what it is that they're really interested in, what information they're seeking and what direction the investigation is headed, the better the lawyer is able to prepare the client for the types of questions that are going to be asked and the types of issues that are going to be raised.
Editor: Following the McCarthy era in the '50s the trend in Congress was to restrict fishing expeditions by committees, which was so rampant during that time, whereas most investigations today are for the purpose of providing information to Congress as a basis for legislation.
O'Reilly: With the growth of the Internet and cable television, including the broadcasting of almost every congressional hearing through C-Span or the Committees' own websites, it should be harder for committees to do things today that might cross the line. The increased access to these hearings has had the effect of increasing the motivation of committees to make sure that what they're doing is consistent with what their constituents want them to be doing.
Editor: What should one do in preparing a witness for an investigation?
O'Reilly: You can never do too much! It is important to get as much information as you can about the purpose of the investigation and the interests of the various committee members. There may be instances where the members of a committee have significantly different interests in terms of a particular witness and the kind of information they'd like to elicit from that witness. A witness's testimony, for example, might be viewed as very supportive of one side in an investigative matter but contrary to the interests of another member. Understanding that dynamic is important in preparing the witness. The actual preparation of the witness largely involves making sure the witness understands the nature of the process - where he is going to sit, where the lawyer is going to sit, who is going to be asking the questions, what types of questions will be asked, the limitations on his ability to communicate with counsel, limitations on the ability of counsel to object to questions on his behalf or otherwise participate in the hearing in any way other than simply consulting with the witness. One prepares the witness as one would prepare him for trial - just asking the witness the questions that you expect the witness will be asked during the course of the hearing, listening to the answers and talking to the witness about how those answers will be received by the committee. He must understand the types of questions likely to be asked so there are no surprises. The witness also needs to understand that he has an absolute obligation to tell the truth during the course of the hearing.
Editor: Do you recommend that the witness have testimony read back if he thinks he has been misunderstood?
O'Reilly: If a witness thinks that a member of a committee is in some way misinterpreting or misunderstanding his testimony, the witness certainly should correct that. It may at times be better for the witness to say, "I may have misspoken," in order to excuse the questioner from not having heard the answer correctly. It's better if you can do that during the course of the hearing as opposed to trying to clarify it later because you won't have the same audience later.
Editor: Is it wise for a witness to take the Fifth Amendment to avoid testimony?
O'Reilly: If testifying would expose the witness to criminal prosecution, absolutely. There are several considerations that the witness needs to keep in mind when determining whether to invoke the witness's Fifth Amendment right. Most committees will require witnesses to do that in a public setting, which can carry with it consequences in terms of conclusions and assumptions that the public may draw about the witness's conduct, even though it is a witness's constitutional right - not something that can be used to support a finding of criminal liability, for example, in a criminal case. It may very well be the case that someone watching the hearing or reading the transcript will assume that because the witness is invoking his constitutional right, he must have done something wrong or must have something to hide. The witness needs to understand the consequences, reputational and otherwise, of invoking his Fifth Amendment right and the consequences of testifying in an open, public setting as well as the possibility that such testimony may be the basis for a future criminal prosecution. Ultimately this is a call that the witness has to make on the advice of counsel, weighing those competing considerations.
Editor: How does counsel handle the press, especially when there is a great deal of acrimony generated by the testimony?
O'Reilly: Initially this is a judgment for the witness to make as to how to deal with the issue from a public relations and press perspective. There are a couple of ways to address it: one is to have the lawyer speak to the press about the issues relating to the witness's testimony; another is to bring in a public relations professional who regularly deals with the press. In each case, it's important to communicate with the press about the issues. Ultimately it is the client's judgment as to what to have the lawyer or the public relations professional say and how much to say. The one principle that should be observed in cases with pending criminal or civil proceedings is that the witness should not talk to the press because the statements to the press are obviously going to be public and can in certain circumstances provide fodder for civil liability or criminal prosecution.
Editor: In the current economic environment, do you expect many more corporate executives to be called to provide testimony for purposes of benefiting Congress in preparing legislation as well as to get to the heart of some of the deficiencies in corporate governance that led to financial difficulties?
O'Reilly: Absolutely. We are seeing additional authority being given to congressional committees, and additional subcommittees being created, to identify additional issues for investigation and oversight. We have an extraordinary amount of government money being committed to a variety of different projects. Whether it's Recovery Act funds or money being spent on the wars in Iraq and Afghanistan, the whole government contracting arena is an area in which there is a tremendous interest on the Hill in rooting out waste, fraud and abuse. There is going to be a tremendous interest in ensuring that Recovery Act funds are being spent appropriately by the recipients of those funds and a very strong interest among members of Congress in making sure that their constituents understand that they are ensuring that taxpayers' money is being spent wisely.
Published August 5, 2009.