United States: Post-Election Congressional Investigations Update

I. Overview

The 2018 election—and, in particular, control of Congress—has been a subject of intense debate and speculation for months, as Democrats aimed to capitalize on an energized base and Republicans sought to mobilize Trump voters without alienating moderates. With the election now in the rearview mirror, the landscape for the next two years is beginning to take shape and the terrain promises to be incredibly complex for businesses and policy advocates.

Like most, we expect the new Democratic House majority to direct much of its attention to executive branch oversight and accountability. The members and staff leading Democratic oversight efforts have deep experience and expertise, and we do not expect them to overplay their hand. For that reason, reports of “payback” and rampant subpoenas are likely overblown. That said, Democrats will significantly increase congressional scrutiny of the private sector, both concerning its own activities and its interactions with the Trump Administration. Companies and their legal counsel should be prepared, and also need to factor in a dramatically changed collateral environment in terms of media and parallel inquiries. Investigations will cover a wide range of topics, but here are five areas that are certain to be of interest:

1. Fraud, Corruption, and Ethics. Expect oversight of Cabinet members and other government officials, as well as government contractors. This could extend to examining the role of lobbyists and interest groups in driving policy changes made during the first two years of the Trump Administration, as well as dealings with private businesses associated with Trump Administration officials.

2. Pricing. Look for price increases to be an issue, both in the pharmaceutical space with critically important drugs and in the tech and online retailing space given recent reporting about so-called “dynamic pricing.”

3. Consumer Protection. This will be a consistent theme in oversight of products offered in the banking and pharmaceutical sectors, as well as in the tech industry with regard to questions of data privacy, anti-competitive practices, and vertical integration.

4. Emerging Technologies. Safety in emerging technologies—such as drones, robotics, and autonomous vehicles—will prompt interest as well, particularly as companies inch closer to deploying these technologies for large-scale consumer-facing use. Efforts to supplement the regulatory framework for those technologies also will be reviewed.

5. Climate Change. Although their ability to directly effect change may be limited, Democrats also will examine climate issues, ranging from the Trump Administration’s support of the fossil fuel industry to investigations of public statements by corporations regarding climate change and funding of so-called climate denial science.

Beyond those five key topics, there is the perennial reality of a wildcard:

6. Headline Events. Breaking news is still sure to generate congressional inquiries. Sexual misconduct, discrimination on the basis of sexual orientation or race, natural and manmade disasters, China, the opioid abuse crisis, and cyber threats will continue to drive the news cycle and generate oversight.

7. The Special Counsel Investigation and Impeachment. What will happen next in the Special Counsel investigation and whether Democrats will push to impeach President Trump are unknown factors that could drown out nearly everything else. An impeachment effort would certainly divert oversight resources; it also would make it harder for other investigations to attract media attention. The Special Counsel investigation also may prompt broader oversight into related topics, such as foreign influence operations in the United States and the Foreign Agents Registration Act.

Democrats will be aided in investigations by changes made by House Republicans in 2015 that gave more committee chairs the authority to issue subpoenas unilaterally; previously, most committees required a majority vote and consultation with the ranking member. Of the 21 standing committees in the House, 14 now allow their chairs to issue subpoenas unilaterally. Democrats also may be aided by new precedent supporting the enforcement of congressional subpoenas through civil suits.

It is also worth noting the speed and fluidity with which an inquiry from Congress today can cause ripple effects across forums, including the stock market, social media, the consumer market, and regulators and law enforcement agencies. Companies and advocates also need to keep a watchful eye on Senate Republicans and on Senate Democrats who may partner with House colleagues to launch inquiries.

II. What to Watch

Below are more details on likely oversight priorities by industry.


Democrats are likely to continue conducting oversight of the major tech companies by focusing on consumer protection issues such as data privacy, as well as broader antitrust and competition issues. Companies can expect lawmakers to continue to take issue with their size, reach, and control. Election security is a top priority of both parties, and any reports of interference in the midterm elections may prompt bipartisan inquiries. Hearings in this particular area have been plentiful, however, and we may see more quiet conversations than public spectacles.

In the area of consumer protection, legislative efforts to codify elements of the Internet Bill of Rights (IBR) drafted by Rep. Ro Khanna (D-CA) may lead to parallel investigations designed to highlight the abuses that Democrats would aim to remedy through legislation. Investigations of dynamic pricing practices may touch on surveillance of Americans’ consumption and retail habits more broadly. This is a common but little understood practice and the mystery around how it works may prompt scrutiny.

And while House Republicans may not get much traction for conservative bias or free speech investigations or for breaking up tech giants, tech companies may face competing narratives as Democrats launch their own bias investigations focused on gender discrimination or lack of opportunities for women and minorities.

Financial Services

Democratic-led oversight in the area of financial services is likely to include a greater focus on accountability of large banks and scrutiny of services in the automotive, student, and payday lending spaces. Republican-led efforts to reform the Community Reinvestment Act may lead to Democratic oversight of redlining and access by low-income borrowers to loans and financial services.

Some have speculated that Rep. Maxine Waters (D-CA), who is poised to chair the House Financial Services Committee, will prove to be amenable to working across the aisle to achieve results. But when it comes to oversight efforts, she made clear before the election that she intends to focus on large banks; in recent remarks, she stated: “I have not forgotten you foreclosed on our houses. I have not forgotten that you undermined our community . . . I’m going to do to you what you did to us.”

But while this might be an attractive path for the Committee to take, we expect that Rep. Waters will weigh whether it is the most productive use of Committee resources. Large banks have already testified at multiple hearings and responded to hundreds of questions for the record; holding additional hearings in the face of that record may seem punitive. Additional hearings also are likely to generate limited media interest given the amount of coverage the topic already has received. Democrats may instead choose to look at how the financial services industry has expanded beyond banks to include non-traditional lending by private equity and hedge funds, and corporate lending by asset managers, as well as at new technologies and mechanisms for establishing creditworthiness. Such an effort likely would be designed to support new jurisdictional legislation, a possible permanent legacy for Rep. Waters after decades of public service. Rep. Waters will also certainly scrutinize Trump Administration efforts to rein in enforcement activity at the BCFP and other enforcement agencies. Democrats may, for instance, seek depositions or transcribed interviews of agency officials, as Republicans did during the last Congress.

Healthcare and Pharmaceuticals

In the healthcare sector, drug pricing and opioids are likely to be two top continuing targets of congressional oversight. There have been press reports that Minority Leader (and likely Speaker of the House) Nancy Pelosi met with PhRMA’s board of directors earlier this year and stated that reducing prescription drug prices would be a top Democratic priority. Oversight efforts are likely to accompany legislative efforts.
Oversight also may focus on the role of third parties—such as hedge funds, business consultants, or private equity investors—in pricing or other pharmaceutical business decisions.

Energy / Natural Resources

Democrats are likely to dramatically increase oversight of the Environmental Protection Agency (EPA) and the Department of Interior, while also erecting bulwarks to Trump Administration regulatory rollback efforts. Rep. Raul Grijalva (D-AZ), the presumptive chair of the House Natural Resources Committee, has been a staunch critic of Interior Secretary Zinke and is expected to hold hearings on “wasted resources” at the Interior Department.

House and Senate Democrats also will look for opportunities to investigate climate change issues, both in the private sector and in the executive branch.

Defense and Government Contractors

Under Democratic control, the House Armed Services Committee likely will examine President Trump’s efforts to divert military resources to secure the border, as well as the use of Department of Defense facilities to house immigrant children and the Trump Administration’s ban on transgender people serving in the military. Other areas of focus will include contractor support for “the wall” and for surveillance and monitoring of immigrants. We also expect to see some oversight focused on the use of emerging technologies in the defense space, including AI and facial recognition technology.

III. What to Do When You Are a Target

Companies implicated in congressional inquiries would do well to look for ways to cooperate while still advocating for their interests. Experienced counsel often can ensure that the staff has the information they need to conduct oversight while limiting the burden and risk to the company. For example, staff and member questions often can be answered more effectively (and with less burden on the company) by offering an informal in-person briefing rather than a voluminous document production. Counsel also may be able to propose creative solutions to limit the client’s exposure from the process.

If a company is called to testify at a hearing, it should immediately begin a focused effort to prepare. Hearings are high-stakes events, and the preparation process should take the form of well-organized and methodical briefing sessions and mock hearings. Written and oral testimony offer a limited opportunity to frame the company’s affirmative narrative and are memorialized as part of the hearing record. Following the hearing, witnesses may be asked to respond to questions for the record; high-profile hearings may generate hundreds of such questions. Committees also may issue reports detailing their findings, and companies will want to engage in a dialogue during this process.

Where congressional inquiries are taking place against a backdrop of civil litigation and regulatory or law enforcement investigations, corporate counsel will want to engage the assistance of advisors who can develop a global response plan and ensure coordination between all relevant players. When and how to engage consultants, from lobbyists to media strategists, is an important decision and one that should be guided by experienced counsel, as the right consultants will be able to integrate seamlessly into the company’s broader strategic response plan. In some cases, it will be prudent for the board of directors to engage independent counsel, and a global response plan should incorporate a strategy for coordination between the various entities.

Most importantly, companies in high-profile industries should be aware that investigations often start long before the first letter or subpoena is sent. The first outreach may come in the form of an informal inquiry, and it is often possible to manage these inquiries in a way that prevents escalation. Companies and their counsel may wish to conduct a risk analysis or take other proactive steps, such as reaching out to key members and staffers to open a dialogue in advance of any inquiry. Others may prefer to monitor key committees and member statements. And others may find it useful to develop a comprehensive crisis management plan that will prepare the company for unexpected developments. Each company is differently situated and there is no one-size-fits-all solution, but experienced counsel will be able to develop and advise on a suite of options that takes into account the industry, factors unique to the company or witness, and the political climate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Skadden, Arps, Slate, Meagher & Flom (UK) LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Skadden, Arps, Slate, Meagher & Flom (UK) LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions