Here's How Career Feds Can Avoid Getting Tripped Up by Congressional Investigations
Experts offer tips for civil servants to prevent themselves from becoming collateral damage in battles between the legislative and executive branches.
As congressional Republicans use their new House majority to ramp up investigations into the Biden administration, career federal employees who get swept up in the various inquiries can take key steps to protect themselves from liability and guard their reputations.
Civil servants frequently get caught in the crossfire of political battles between the legislative and executive branches, particularly in times of divided government, several attorneys who have represented workers ensnared in lawmakers’ investigations said on Wednesday. As Republicans look to bruise President Biden ahead of his potential re-election campaign, career employees could soon become “collateral damage,” the attorneys said.
“Unfortunately, the reason career employees become the focus of congressional oversight efforts isn't about investigating the performance of an agency program, or gathering information about potential legislation,” said Justin Shur, a partner at MoloLamken. “It's often about politics.”
Republicans have begun or signaled that they will begin probes into topics ranging from immigration to COVID-19 to taxes, which the attorneys said put employees at the departments of Homeland Security, Health and Human Services, Defense, State, Transportation and Justice, as well the Small Business Administration and other agencies, at heightened risk for investigation. Senior ranking officials in General Schedule-14 or -15 positions are most likely to be dragged into the oversight efforts, though responsibilities for responding to congressional requests could trickle down to employees at all levels.
“Anyone and everyone can be impacted by one of these investigations,” Shur said. “Given the agenda that we've seen some of these committees lay out so far, I think we can expect that career government employees are going to get caught up in this next round of oversight investigations.”
Once they become involved, the attorneys said, employees should maintain good relationships with their agency’s congressional liaisons while understanding those offices serve to protect the interests of the government and not the individual.
“They will be thinking and acting in terms of the interests of the agency as the whole,” said Eric Nitz, another partner at MoloLamken. “So their responsibilities, their duties really are to the agency, and to the government itself.”
Still, Nitz explained, the agency’s general counsel and congressional affairs team knows how to navigate the process. For example they can help an employee who is facing a subpoena, by negotiating terms behind closed doors.
“They understand what the different moving pieces are and what some of the objectives might be,” Nitz said. “And that can be really valuable information for individual employees who are trying to navigate their role in this and trying to interact with congressional investigators and their agency in a way that really preserves their own reputational interests, and helps them get through this whole process relatively unscathed.”
Christopher Keeven, a partner at Shaw Bransford and Roth, cautioned that career employees can become “casualties” as a congressional committee’s political agenda butts up against that of an agency. He noted employees always have the right to private counsel and it is those attorneys—not agency representatives—who can accompany an individual into a congressional deposition.
Nitz added personal attorneys can aid in negotiating with lawmakers over how to provide information. Instead of a public hearing, feds can sometimes provide private interviews or simply give answers through their legal representatives.
“There's a lot of room for employees and the lawyers representing them and for government agencies to come up with creative ways to provide information to the committee,” Nitz said.
When employees do get called to give public testimony, the attorneys stressed that preparation is key. Winging it, Keeven said, is a “recipe for disaster.” Employees should be prepared for significant political theater and to avoid familiar traps, such as being backed into providing a “yes or no” answer to a complex question. They should also make it clear when a question is predicated on false information. Shur said employees must be sure to “stay on message” without stepping outside their areas of expertise.
“You need to know exactly what message you want anyone watching the hearing to take away from your testimony,” Shur said, “and then you need to be prepared to consistently and repeatedly deliver it.”
Even lower-ranking employees can get swept up in a congressional probe. As lawmakers press for information on agency decisions or actions, political appointees can come to employees down the chain and conduct a “document collection interview” to determine the full scope of the “responsive document universe.” Helping to track down certain emails or other communications can be the end of an employee’s involvement, or it can signal the start of something much more time consuming. As lawmakers look to intensify their efforts, pressure may mount for the Biden administration to take action.
“Oftentimes the career federal employee can be somewhat of a scapegoat or collateral damage,” Keeven said. “When the media and the Congress are demanding accountability, what that often means is terminating employees.”