Navigating Congressional Subpoenas with Experienced Federal Defense Attorneys

Congressional investigations are often high-stakes, politically charged, and legally complex, placing individuals and businesses under intense scrutiny. A congressional subpoena requires testimony or the production of evidence, similar to a court-issued subpoena, but with distinct legal and strategic considerations. Failure to respond appropriately can result in criminal contempt charges, regulatory referrals, or significant reputational harm.

At Burnham & Gorokhov, PLLC, we provide experienced legal representation for clients facing congressional inquiries, ensuring they protect their constitutional rights while mitigating potential legal risks. Our team has successfully defended former government officials, attorneys, and private individuals against aggressive congressional investigations by employing negotiation, privilege assertions, and litigation to safeguard our clients’ interests.

Understanding Congressional Subpoena Power

Although congressional subpoena power is not explicitly stated in the Constitution, the U.S. Supreme Court has long upheld Congress’s authority to issue subpoenas. In Trump v. Mazars (2020), the Court reaffirmed that congressional committees have the power to compel testimony and demand documents as part of their investigative function.

A congressional subpoena is similar to a court subpoena, requiring a recipient to appear for testimony or produce documents on a specified date. However, the scope of congressional investigations and the available legal defenses differ from traditional court proceedings.

Right to Legal Representation in Congressional Investigations

Individuals and businesses subpoenaed by Congress have the right to legal counsel to guide them through the process. An experienced federal defense attorney can:

• Challenge the subpoena on legal grounds
• Assert constitutional or legal privileges (e.g., Fifth Amendment, attorney-client privilege)
• Negotiate with congressional staff to modify the scope of the request
• Prevent adverse enforcement actions for non-compliance

Given the serious legal and political risks, it is crucial to have skilled representation before responding to a congressional subpoena.

Negotiating a Congressional Subpoena

Although members of Congress issue subpoenas, much of the investigative work is conducted by committee staff—including attorneys and legal advisors. These individuals serve as the primary points of contact during the subpoena process.

While legal challenges to a congressional subpoena may be an option, negotiation is often a more effective and strategic approach. Skilled attorneys can:

• Secure extensions to allow more time for compliance
• Narrow the scope of document requests to reduce undue burdens
• Ensure compliance without compromising privileged information

Asserting Legal Privileges Against a Congressional Subpoena

Congress cannot override constitutional rights through its subpoena power. Recipients may assert:

• The Fifth Amendment (protection against self-incrimination)
• First Amendment protections (speech, association, and expression rights)
• Attorney-client privilege and work product protections

If a subpoena seeks privileged information, the first step is to raise this issue with committee staff. Attorneys can negotiate limitations on testimony or submit a privilege log identifying protected documents—allowing partial compliance without surrendering legal protections.

Challenging a Congressional Subpoena in Court

In politically charged investigations, negotiations may not be enough. In such cases, an attorney may recommend challenging the subpoena in federal court.

Although courts often defer to Congress, legal challenges may be appropriate in cases involving:

• Overbroad or vague subpoenas
• Requests for privileged or confidential information
• Constitutional rights violations

For example, in Eastman v. Thompson, our firm successfully protected thousands of documents from disclosure to a congressional committee by asserting First Amendment and attorney-client privilege defenses.

Preparing for Congressional Testimony

While public hearings receive the most media attention, many congressional depositions occur behind closed doors. These depositions resemble civil litigation depositions, where questioning is primarily conducted by committee attorneys rather than members of Congress.

Legal counsel plays a critical role in:

• Preparing testimony to prevent legal missteps
• Accompanying the witness to raise objections and assert privileges
• Ensuring compliance with any negotiated limits on questioning

Well-prepared testimony can mitigate legal risks and prevent misstatements that could be used against the witness in future proceedings.

Enforcement of Congressional Subpoenas

Ignoring a congressional subpoena can result in criminal contempt charges. If Congress believes a recipient willfully refused to comply, it can refer the case to the Department of Justice (DOJ) for prosecution.

Recent cases include:

• United States v. Stephen K. Bannon – Convicted for defying a congressional subpoena, sentenced to prison
• United States v. Peter Navarro – Convicted for refusing to comply with a congressional subpoena, sentenced to prison

Engaging legal counsel early can help avoid criminal exposure by ensuring lawful compliance while protecting constitutional rights.

Avoiding Criminal and Regulatory Referrals

Congressional investigations can lead to criminal referrals beyond contempt charges. If evidence suggests a crime was committed, Congress may refer the matter to:

• The Department of Justice (DOJ) for potential prosecution
• Regulatory agencies (e.g., SEC, FTC, IRS) for civil enforcement actions
• State bar associations for attorney disciplinary investigations

Understanding the risks of criminal or regulatory exposure is essential before making any decisions in response to a subpoena. An experienced congressional investigations defense attorney can assess potential exposure and develop a strategy to mitigate risks.

Handling Media Scrutiny in Congressional Investigations

Because congressional investigations often involve high-profile issues, they can generate intense media coverage. Poor media management can cause lasting reputational harm.

Depending on the case, a media strategy may involve:

• Remaining silent to avoid drawing further attention
• Engaging journalists strategically to shape the narrative
• Issuing press statements or social media responses to clarify facts

A skilled congressional investigations defense attorney can advise on the best approach to protect both legal interests and reputation.

Our Experience in Congressional Investigations

At Burnham & Gorokhov, PLLC, we have successfully represented clients facing congressional subpoenas, including:

• A former Department of Justice official subpoenaed by Congress
• A former White House attorney subpoenaed by a congressional committee
• An individual targeted for cell phone location data by Congress
• Clients asserting privilege in federal court to block unlawful disclosures

Protecting Your Rights in Congressional Investigations

A congressional subpoena requires a strategic legal response to avoid criminal exposure, regulatory referrals, or reputational damage. Whether negotiating with congressional staff, asserting legal privileges, or challenging a subpoena in court, having an experienced federal defense attorney is critical.

At Burnham & Gorokhov, PLLC, we provide aggressive, strategic representation for individuals and businesses facing congressional subpoenas and investigations. If you have received a subpoena from Congress or are involved in a high-profile investigation, contact our congressional defense attorneys to discuss your legal options and develop a tailored defense strategy.