There continues to be a lot of misinformation out there about what congressional investigations entail, and how they work.
As the prospect of Democrats assuming control of at least one if not both houses of Congress in this year’s midterms appears increasingly likely, it seems a good time brush off that old blog and update it. There continues to be a lot of misinformation out there about what congressional investigations entail, and how they work. These are the seven key myths regarding congressional oversight investigations:
Myth #1: The Democrats will be too busy investigating the Trump administration to focus on the private sector. There is no doubt the highest profile oversight in the next two years will focus on allegations of misdeeds in the Trump administration, but its effect in that area is likely to be limited for at least two reasons: 1. Dems are more reluctant than they once were to go hard at the Trump administration, after failing twice in prior impeachment attempts; and 2. The Trump administration has time and again demonstrated a disdain for Congress and its oversight, and is likely to decline to respond on key issues. This will likely mean a quick pivot to the private sector. Incoming Democratic chairs are likely to focus on issues such as affordability, the Iran war, health care administration, AI and data centers, the crypto industry, and immigration contracts, among many others.
Myth #2: It’s all about the subpoenas. Subpoenas from Congress strike fear in their recipients, but the truth remains that subpoenas are a last resort for committee chairs. Just as recipients fear getting served with a subpoena, committee chairs want to avoid issuing them. For that reason, committees always start with non-binding requests for information, using subpoenas as a threat, rather than a tool of first resort. Often, the fear of a congressional subpoena is more effective than the actual document. The smart recipient uses that reluctance to his or her advantage in negotiating responses.
Myth #3: It’s all about the hearings. Sure, the most memorable congressional oversight occurs at dramatic hearings, with white hot klieg lights shining down on scared witnesses and an angry chair interrogating them. In truth, most congressional committee witnesses never appear in public. The committees utilize a wealth of tools to obtain information from witnesses—staff briefings, staff interviews, transcribed interviews (a peculiar creation of congressional oversight) and congressional depositions. And if a hearing takes place, the successful witness is the one no one remembers a week later.
Myth #4: Congressional subpoenas work like other subpoenas. A lot of lawyers who have never practiced before Congress assume subpoenas issued by the legislative branch work the same way as subpoenas issued by a grand jury or an agency. The truth is congressional subpoenas are a different animal. They are far more difficult to enforce, and the enforcement process takes a very long time. In order to enforce a congressional subpoena, the committee must first pass a resolution of enforcement to hold the subpoena recipient in contempt of Congress. Second, the full House (or Senate) must pass the resolution. Third, it must be referred to a prosecutor (typically the U.S. Attorney for the District of Columbia) who must choose to seek enforcement in the courts. That seems unlikely (at best) with the current Justice Department and its antipathy toward congressional Democrats. Alternatively, the House (or Senate) can sue on its own to enforce its subpoena. This process can take years and does not always succeed in compelling the production of the testimony or documents at issue.
Myth #5: It’s just like discovery in litigation. Many lawyers approach an oversight process as if it were litigation discovery. The truth is it’s a very different playing field with very different rules. For one thing, Congress takes the position that it does not have to recognize the attorney-client privilege. For another, congressional overseers will often attempt to prohibit counsel from attending witness briefings or interviews. The Federal Rules of Procedure are nowhere in sight.
Myth #6: In order to be issued, congressional subpoenas require a majority vote of the committee. This one is a half-truth. That is the case with some committees, but most committees give sole subpoena authority to the chair. This is true, for example, with the oversight committee that has the most far-reaching jurisdiction—the House Oversight and Government Reform Committee. One key question to keep an eye on is whether committee rules on this issue will change in the new Congress. The rules for each committee are generally adopted anew in each Congress, though they rarely change in any significant way.
Myth #7: The law is the most important factor in determining what happens in congressional oversight. Because congressional oversight occurs in a legal context, with lawyers leading the charge and issues such as jurisdiction and subpoena power arising, people often believe that oversight, like litigation, is primarily about what the law requires. In truth, more often than not the deciding factor is public perception—the fear of how it will look to receive a subpoena, the desire to avoid a public hearing, etc., and on the other side the desire to score political points and wound political enemies. Knowing how the law interacts with these other, less legal factors is key to successfully navigating congressional oversight.
Newly aggressive congressional oversight is coming to a Congress near you. The myths are still out there. Come January in Congress, we’ll be meeting new bosses and old bosses. But don’t be fooled.
Sheppard partner Jonathan Meyer is the leader of the firm’s national security team. He is the former general counsel of the U.S. Department of Homeland Security.
“Reprinted with permission from the October 22, 2026 edition of The National Law Journal 2026 Centellic. All rights reserved.”
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