President Trump is calling House Democrats’ ongoing
investigations of his administration “presidential harassment.” Although it may feel that way, this is almost
always how investigations unfold on Capitol Hill.
The oversight world is an integrated system in which many
different organizations and individuals rely on each other to shine a light on
waste, fraud and abuse, in the federal government and in the private sector. Yes, Congress does open some of its own independent
investigations, but resources are limited because staffs are relatively
small.
Source material for a Congressional investigation just as
often comes from a newspaper article, a whistleblower, or an Inspector General
report as it does from a smoking gun document staffers get from a subpoena
response. In the long arc of a
Congressional investigation, independent reports are often just the start of
the process, and hearings with the author of the report or key witnesses are
just the political theater in the middle.
Like Mueller’s team, those independent entities have already
done their own investigation and written a final product. And that is when Congress often picks up the
ball.
When I worked for Senator McCaskill, we held countless
hearings that started with an Inspector General or Government Accountability
Office Report. Most of our Committee’s
work on war profiteering in Afghanistan and Iraq, for example, started with
reports done by the Special Inspector General for Afghanistan Reconstruction
(SIGAR).
There is good reason for Congress to investigate matters
that have already been investigated elsewhere: they serve completely different
purposes. When done well, independent
reports and Congressional oversight together serve as the evidentiary and
political foundation to do something. They expose wrongdoing to the public and give
policy-makers the political capital to make lasting change.
Based on our Afghan reconstruction hearings and the SIGAR’s
reports, we changed the laws
around Afghanistan reconstruction project funding. We limited which projects could receive
funding; we required more transparency in the funding; in short, we made the
government a better steward of taxpayer dollars.
Mueller’s Report
was the conclusion of a legal investigation.
He was looking for evidence of criminality. Congressional investigations are political
and policy-oriented, which can lead to changes in the law so that similar
future actions are criminal. That is why bad behavior that falls short of
a crime still deserves attention and amplification.
The Mueller Report was never going to be the period at the
end of the Russia sentence. That is not
how the oversight system was designed.
While the Mueller Report did not lack for media coverage, few
people are going to read it cover to cover.
Many more will tune in to a hearing featuring Mueller or from Don McGahn,
and highlights of the hearing will undoubtedly go viral, establishing new
narratives around the investigation. And
that in and of itself has value.
Congressional Democrats are struggling with the impeachment
question. That is a good thing because their
work is not over.
Nancy Pelosi is absolutely right that the public needs to
hear directly from all of the characters in this story. It gives the political process a chance to
build the will to act, whether that leads to impeachment proceedings, better
laws safeguarding our elections, or both.
Companies that find themselves under investigation can take
some lessons from the President’s reaction to the Congressional oversight
process. Despite his protestations, the
show will go on; Mueller will testify.
And his testimony likely will not be the last word on the matter.
Likewise, companies under investigation need to prepare
themselves for the fact that Congressional investigations rarely end with
nothing to show for them. They need to have
a strategy to engage with Washington before, during and after an investigation
by Congress.
Companies need to work with the office conducting the investigation,
of course. But they also need to
identify others on Capitol Hill that will impact the narrative and the
aftermath of the investigation.
95 percent of any Congressional hearing is going to be questions
from Members of Congress other than the Chairman of the Committee, for example. If all a company does is respond to the
Committee staff, they are missing an opportunity to shape 95 percent of the
hearing narrative, and that just covers the Members of the Committee in which
the hearing will take place.
There may be champions or antagonists that are not on the
committee that may decide to write a bill on the subject or go on cable news to
discuss the issue simply because they are passionate about it. It is critical to identify those Members as
well.
News outlets may also be looking at follow-up stories. Think tanks may be coming up with policies to
respond to the issue. Constituents may
start writing to their representatives about the issue.
That narrative is going to have a big impact on whatever
happens next – whether a new law is passed or follow-up hearings are held. Companies need to take advantage of the entire
time horizon of a Congressional and push their message and agenda far and wide
to achieve the best possible outcome.
There are many opportunities at a company’s disposal to
shape the narrative of a Congressional investigation. Having a plan to take advantage of those opportunities,
and understanding how the process unfolds is critical.
