New Job in the Biden Administration?
Congratulations, there may be a subpoena in your future. Here’s what you need to know.
Some of you may have received (or will be getting) the proverbial golden ticket—the offer of a position in the Biden administration. Congratulations! Your hard work and expertise (or political donations) have paid dividends.
Government jobs—particularly political appointments—are great. In an ideal world, you will step into leadership and begin to steer the ship of state in your preferred direction. You will learn much, get to see things from the inside, and maybe get to know a political celebrity or two, all while serving your country. Sure, the pay is not great, but that’s not the point—you get a chance to help implement the ideas you and your political allies believe in. Heady stuff.
Hopefully, your experience will be everything you dreamed of. But in hyper-partisan Washington, consider the possibility—not necessarily the likelihood, but a real chance—that there may be a legal proceeding in your future.
“Who, me?” you respond, “I’m as ethical as they come, and I’d never be involved in a Washington scandal!” And you are probably right. But good people who have done nothing wrong get dragged into investigations all the time, be they conducted by a Congressional committee, an inspector general, the Office of Special Counsel, or even the Justice Department. Moreover, sometimes investigations many would consider without legal or factual grounding get initiated for political reasons (I know, it’s shocking).
So what can you do to be ready in case the first legal controversy of the Biden administration involves you, your boss, or your agency? Having represented or advised scores of government employees caught in the crosshairs of both minor and major legal headaches involving Congress, Inspectors General, the Justice Department, or the Office of Special Counsel, here are the answers to a few questions that can help you prepare long before any storm clouds have gathered on the horizon.
Should I get insurance?
Most federal employee benefits packages include the option to buy insurance for legal issues that might arise in the course of your duties at a very inexpensive rate (a few hundred dollars) as the federal government pays half the cost. For some intelligence community related jobs, the government will pick up the whole tab. Buy the insurance! The policy won’t cover $1,000-an-hour lawyers and provide unlimited coverage, but for most circumstances, you’ll be covered and avoid potentially brutal out-of-pocket fees if the need arises.
But my buddy is a lawyer (or I’m coming from a law firm). One of them will represent me for free.
It is really a bad idea to rely on this strategy. First, your roommate’s career as a FERC regulatory lawyer may not really come in handy when the subpoena drops. You will need a lawyer with relevant experience. Second, if you are still in your government job when the need arises, you have to comply with laws regarding gifts. Free legal work might well qualify as a gift, and might complicate your situation to the point that relying on pro bono representation may not be a viable option, because the proposed legal services may be viewed as a gift to you to curry favor with your agency.
Won’t my agency represent me?
Maybe it will, maybe it won’t. In a routine Congressional request for information, your agency’s legislative affairs team or lawyers will help the agency respond. But many situations are more complicated. For example, if your agency instructs you not to comply with a subpoena on legal grounds, but you are the one threatened with contempt if you don’t show up, you may want your own advice. Or (and this is increasingly the policy of many inspectors general) an IG may not allow agency counsel to be present if you are interviewed, fearing a “chilling effect.” Do you really want to be unrepresented in such a case? What if some of the facts being investigated are “awkward” even if not illegal? You’ll want your own lawyer in order to have conversations protected by the attorney-client privilege to explore your options.
What can go wrong? It’s not like I’d be involved in a murder case.
Plenty. The obvious problem is making false statements. I’m not suggesting you are a liar but memories fail, documents contradict memory, and nervous people make mistakes. Particularly when there is a controversy or something has been the subject of media attention and office gossip, can you separate what you know first-hand versus what you heard from others? A lawyer can help you prepare, put you at ease, and give you a few tips to avoid the common problems and patterns of speech that get many witnesses into hot water. For example: In an ordinary spoken conversation, the phrase “I’m sure I just … ” can convey uncertainty, coupled with the notion that the matter is not significant. For instance, if I asked you where’s your scarf on a cold day, you might say, “Oh, I’m sure I just left it in the car,” when the scarf may be in the car, or at home, or in the office and you are just making a best guess assumption and letting me know you are unconcerned because the scarf will turn up). However, if I am the lawyer writing a report about your testimony before a Congressional committee, a transcribed interview of the same words can be quoted to show certainty: “Although the witness testified that the scarf was in her car and indeed that she was “sure” of that fact because she had “just” left it there, it was actually in her office. We find the witness was not truthful in her testimony.”
I know; that was an unfair characterization. Lawyers suck; that's why you want your own.
My old boss is going to be my new boss, and she’ll protect me, right?
Maybe. But in a significant investigation, you might well be prevented from talking to your boss about the subject at hand (while your lawyers can likely talk to each other about it). Also, protecting you may or may not be in the interest of your agency or your boss. Government and politics are hierarchical, and sometimes protecting the hierarchy is more important than protecting an individual with a complicated (though correct) story. In other words, ask not for whom the underside of the bus comes, it may well come for thee, regardless of how loyal you think your team is. You need your own lawyer, loyal to you, and not anyone else.
Can I keep my Twitter, my Instagram, and my other social media?
Legally, probably yes depending on your content. But don’t do it. Your agency will brief you on its own rules, and there are Hatch Act issues to be aware of, but make your life easy: Delete them all.
For my government email, does delete mean delete?
Assume no—not ever. Email accordingly. Be thoughtful.
What about texts?
Same. Assume they are out there. Some agency phones won’t allow texts anyway.
Can I just use another app or my personal phone?
If you want to risk violating various federal record-keeping laws, yes. If not, no. Work should be through work channels. Also, if you do get that subpoena someday, do you really want to commit a felony by deleting the relevant communications or app from your phone? Are you really going to rely on everyone you communicate with to deny the existence of the separate account for sensitive work stuff?
But I do everything via electronics!
Get over that. In person meetings and thoughtful communications are your friend.
Any other advice?
Enjoy your new gig. Trust your moral compass. If you don’t have friends who aren’t “Washington friends,” find some. And if you do get caught up in what seems like potential legal trouble, talk to a lawyer sooner rather than later. You’ll feel better that you did.
Robert N. Driscoll is a Chair of the Government Investigations and White Collar group at the law firm McGlinchey, and a partner in the Washington, D.C., office. He is also a former Justice Department deputy assistant attorney general. He has represented numerous government officials, private citizens and corporations in Congressional, administrative, and criminal investigations.