Corporations prep for inquisitive oversight

Two people sat behind Patricia Dunn as a congressional panel grilled the former Hewlett-Packard chairwoman about a media leak scandal: her lawyer and her lobbyist.

The panel was investigating possible illegalities arising from an effort to uncover the source of press leaks. Dunn faces criminal charges for her alleged role in the “pretexting” scheme. She pleaded not guilty in a California court earlier this month.

Before Dunn faces the courts, though, she faced a House Energy and Commerce government and investigation subcommittee bipartisan in its anger over allegations that private investigators hired by the firm unlawfully obtained phone records of reporters who had written about details of board meetings.

Prior to testifying, Dunn hired Drew Maloney of the Federalist Group to guide her through the particular pitfalls of a congressional oversight hearing, often a cross between a court of law and a court of public opinion.

“There are legal considerations, general corporate considerations, political considerations and Wall Street considerations,” said Maloney, who has a law degree but worked as a congressional aide before becoming a lobbyist.

“It is a very different environment.”

It is an environment, though, that more corporate executives are trying to prepare for now that Democrats have gone on record with their intention of stepping up the oversight-and-investigations role of Congress when they regain control next year.

Much of that effort will focus on the White House. But defense, pharmaceutical and oil and gas companies all could be on the hot seat.

“Clients and potential clients have recognized that this is a new Congress with bold new initiatives. One initiative, as people on the Hill have indicated, is investigation and oversight,” said DeMaurice Simon, a former criminal prosecutor who joined Patton Boggs’s practice just a month ago.

Patton Boggs, which operates as both a law and lobbying firm, has a team of up to 25 partners and associates who help clients deal with government investigations.

Jack Quinn, a  counsel to then-President Clinton — and thus someone familiar with congressional inquiries — said he has also heard from clients about what Democrats are likely to be looking for.

His firm, Quinn Gillespie & Associates, isn’t a law firm, but it has still guided healthcare, financial services and telecommunications clients through the public battering that can often accompany congressional investigation.

“We have already heard from corporate clients that are concerned they might be in the crosshairs,” Quinn said.

Quinn Gillespie recently hired Kevin Kayes, a chief counsel to Senate Minority Leader Harry Reid (D-Nev.). Kayes is expected to help with the firm’s investigations practice.

Witnesses before a congressional panel have two options: They can testify or they can invoke the Fifth Amendment, as other witnesses did before the Energy and Commerce panel where Dunn testified.

Refusing to answer questions for fear of self-incrimination may be the safest legal play, but it can often make the person look guilty to the public watching, likely a larger audience than would witness a subsequent court trial.

For a corporate executive, pleading the Fifth or giving a bad showing before a congressional panel could have an immediate impact on the company’s fortunes. Nervous investors could force stock prices to fall. Worse still, a poor performance could damage the corporate brand.

Quinn equates the experience with a cold shower. The trick is to get in and out of the public eye.

In this way, testifying in a congressional oversight hearing is not unlike a courtroom experience: Witnesses need to be truthful and forthcoming without “doing the job of the inquisitor” by volunteering information that can make a story linger or, worse, create new legal jeopardy, Quinn said.

“When you go under oath, you should not be afraid to say, ‘I don’t know,’ or, ‘I don’t remember,’” Quinn said.

Witnesses have to be particularly cautious if they already are under some other legal threat.

“The toughest challenge is managing that forum while at the same time managing possible collateral investigations or collateral litigation,” Simon, of Patton Boggs, said.

In the congressional forum, different rules apply than in court. In a courtroom, a judge manages courtroom rules. Lawyers can object to questions on the grounds of hearsay or irrelevance. During a congressional hearing, members and clients interact.

“Preparation for these hearings is at a premium,” Simon said.

Prior to Dunn’s testimony, Maloney said, he introduced Dunn to panel members and staff, and went over questions she would likely face during her testimony. Dunn told the panel that she would have acted differently if she knew what she now knows, but did not accept “personal responsibility for what happened.”

Lobbyists said the key to preparation is to understand the political context of a congressional inquiry. That can help to predict the types of questions lawmakers will ask.

Quinn, whose practice also includes public relations, said his firm works with clients to develop a narrative that can guide a witness’s testimony.

“You have to think through quickly what is going to unfold, and think about a way to unfold it all with as few stories as possible,” he said.

Such a public and freewheeling forum raises a number of pitfalls, but it can also provide an opportunity to counter criticism, Simon said: “There are helpful facts, and this is an opportunity for a company to get positive facts before the Congress.”