What Energy Companies Need to Know About Congressional Investigations

In this episode of Womble Perspectives, host Lee Van Voorhis is joined by Kristina Moore to discuss what companies—particularly in the energy and data center sectors—should know about Congressional investigations and oversight. Kristina draws on her extensive Capitol Hill experience to explain how these inquiries differ from traditional regulatory or enforcement actions, including the practical realities of subpoenas, privilege concerns, and political dynamics. The conversation covers current and potential oversight priorities in both the House and Senate, along with what executives and general counsel can do now to reduce risk and prepare. 

About Kristina Moore

About Lee Van Voorhis

Transcript

PODCAST INTRO (00:00)
Welcome to Womble Perspectives, where we explore a wide range of topics, from the latest legal updates to industry trends to the business of law. Our team of lawyers, professionals and occasional outside guests will take you through the most pressing issues facing businesses today and provide practical and actionable advice to help you navigate the ever changing legal landscape. With a focus on innovation, collaboration and client service, we are committed to delivering exceptional value to our clients and to the communities we serve. And now our latest episode.

LEE VAN VOORHIS (00:39)
Welcome to another Womble Bond Dickinson podcast. I'm your host, Lee Van Voorhis, and I'm here today with Kristina Moore, a partner in Womble's business litigation and white-collar group. 

With over 25 years of experience, 15 of which spent on Capitol Hill, Kristina advises highly regulated industries with a focus on policy and legal challenges that have gained the attention of the national news and policymakers on the Hill. Welcome, Kristina.

KRISTINA MOORE (01:04)

Thank you so much. It's so nice to be doing another podcast with you, Lee.

LVV (01:07)

Yes, it is. Agreed. For today, I understand that you recently hosted a panel for the Energy Bar Association, which was focused on what energy companies need to know about Congressional investigations. So, let's start with the executive summary. What do they need to know?

KM (01:24)

Well, I think the next Congress is going to be very active in exercising its oversight authority. While it's too soon to make any accurate predictions of who's going to win the House or the Senate, it is looking like the House might flip to Democratic control, and the Senate could stay in Republican hands. This means that there could be multiple fronts of investigations with inquiries targeting traditional forms of energy coming from the House, as well as scrutiny of renewable energy coming from the Senate. As well, I think folks in the data center space should expect scrutiny from both sides.

LVV (01:54)

Got it. Thank you. We've spoken a little bit about this before, but to refresh some of our listeners, could you share a bit about how Congressional investigations differ from other government regulatory or law enforcement investigations?

KM (02:07)

Absolutely. They're quite different. Congressional investigations differ from the government investigations in that they don't necessarily recognize, and the “they” here is staff and the chairman, do not necessarily recognize common law privileges. And the chairman is effectively the judge in ruling on any concerns raised by the target of the investigation, meaning your lawyer can say, "I object," and the chairman says, "Overruled." it's quite a scene. So certainly different than what most attorneys are used to when they are you know, arguing before a judge.

LVV (02:39)

For sure.

KM (02:40) 

The process is also inherently political, and the target could simply be the holder of documents that Congress is interested in obtaining. No wrongdoing is required to become the target of an investigation.

LVV (02:53)

What about any differences between the House investigations and the Senate investigations?

KM (02:57)

Well, I think with anything, the House is kind of a rabble-rouser. They tend to be much more aggressive in issuing subpoenas to enforce their request, while the Senate continues to be the upper body and rely on its prestige to enforce its demands. 

Both do have subpoena authority that sits with the chairs. And I would flag, in, in this coming Congress, certainly if it's split, you could imagine the House and the Senate, so the minority on one side, the majority on the other, working across campus to leverage the chairman's subpoena in order to pursue investigations.

LVV (03:31) 

All right. Well while, as you said, the Republican Party advantage in the House might be short-lived with the midterms looming they currently have a slim majority in both houses. So, what are the GOP's current priorities when it comes to congressional investigations and oversight?

KM (03:47)

Yeah, well, the Republicans in the House, they've been heavily focused on actions of the former Biden administration. In the energy space I can point to the Energy and Commerce Committee is investigating California's regulation of the automotive sector. And that's drawing out subpoenas. And the House Judiciary is investigating efforts to educate judges on climate change. But, you know, the investigative priorities can change with the news. So if there is a major topic, you know, leading the news, that also becomes a topic of congressional inquiry.

LVV (04:18)
 So, look, we want to make this useful for our clients, of course. So bringing it back to them, what compliance issues should general counsels and C-suite executives be most concerned about, given the priorities you've just spoken about? And what can companies do to minimize their risk of a Congressional investigation?

KM (04:35)

That's a great question, Lee. So, there's two considerations here. One is how do you avoid congressional investigations, and the other is what can you do to minimize the impact of a potential congressional investigation? For the former, how do you avoid a congressional investigation, certainly good relationships on both sides of the aisle are very important. A great place to start if you're looking at yourself saying, "Gee, I don't have a lot of those," great place to start is with developing a close relationship with members of Congress that represent your company. So, where is your headquarters where you operate, and where do you have employees? 

Once you kind of have this idea of who represents you in, in the business, you also need to understand what their committee assignments are. Where can they be helpful in leveraging their influence on Capitol Hill? But developing these trust relationships before you need the help is very important. Additionally, understanding your potential vulnerabilities and monitoring the media is very important. 

I've said this a few times. There's a strong connection between what is popping in the news and what is happening on Capitol Hill. Reporters love to cover the Hill beat, and the Hill - Members of Congress -  love to be reported on in the news. There is a direct relationship between the two. So, monitoring the media and, as well as member interests will allow you to act strategically and avoid being surprised. 

These tactics will also help you if you do receive a congressional inquiry. In addition, having a sensible document retention policy that is followed scrupulously by your employees is very important, as well as developing guidelines for how to engage with government actors over email. Casual conversations and sloppy emails make for easy reporting.

LVV (06:14)

And also makes for easier jobs for government investigators in the legal context and, and plaintiffs. So that's some really good advice regarding document management across all areas.

KM (06:24)

Right. and, it, actually, Lee, I wanted to mention one other topic that's an emerging issue, and so I don't know if general counsels have really keyed in on this. I'm sure they have, but probably not in the context of Congressional investigations. So an emerging issue is records of queries to AI chatbots. So you can imagine an employee that is trying to, to be a good employee, and using Claude, or using, you know, AI in order to say, "Hey, you know, help me understand, you know, X," right? But if this is done without this legal supervision you know, there is no privilege. 

A recent court case just made that determination. And this means that the unsupervised conversations by a company's employees could become, very easily, the subject of a Congressional subpoena, and they don't really have an argument to withhold these records if there's no, you know, if there's no privilege. I've said before, Congress doesn't recognize privilege. It's still a conversation, but if these chats are going on unsupervised you know, that, that is something that could be a real vulnerability.

LVV (07.24)

Really important point. Really good advice. All right. So no one knows for certain what November's midterm elections will bring, of course, but as you've spoken about, there's a real chance that one, maybe both houses of Congress could flip. If that happens, what are the Democrats' oversight priorities and what should executives expect?

KM (07:45)

Well, based on our most recent panel discussion that we had we understand from staff that there is a spreadsheet. On that spreadsheet are donors to the White House Ballroom, companies that have reached a settlement with the administration over, let's say, environmental violations, companies that have completed a merger with the approval of the Trump Administration, as well as companies who have cut a deal with the administration.

LVV (08:08)

So you’re talking about a Democratic hit list sort of thing?

KM (08:16)

I, I am. You know, you don't wanna be on that spreadsheet. Victories in 2025 and 2026 could turn into liabilities in 2027 if the House or the Senate flip. So these spreadsheets are, you know, informal record by leadership and committee staff of who will be getting a letter.

LVV (08:34)

So what then should executives expect?

KM (08:37)

Well, it's really up to staff. Traditionally, there was the set cadence of a letter followed by negotiation over compliance, the threat of compulsory process, more negotiation, and then finally, you get to the issuance of a subpoena if the company felt the target was not cooperating and it was important enough to the chairman. This would have played out over a matter of months. 

However, it's absolutely possible that things could escalate from a letter, the initial inquiry, to a subpoena, you know, in a matter of weeks. We've, we've seen that happen with House Republicans, and there's no reason that couldn't happen with House or Senate Democrats.

LVV (09:12)

That's really interesting. All right. So let's, let's turn back more to the main topic today. What is the role of the minority party in Congressional investigations? How does that factor into how a company approaches a Congressional hearing?

KM (09:24)

In my opinion, the minority is a, is a tremendously under-utilized ally. Not only can they be a source of intelligence and information to help you know what's going on, 'cause sometimes it's a black box but they can also serve as an internal advocate pushing back on the majority's plans. Believe it or not, chairmen still care about what their ranking member thinks, and so having the ranking member on your side could be invaluable.

LVV (09:50)
And so, maybe that has some special impact now, especially in the House where it might flip

KM (09:55)
Well, I, I think it's a slightly different consideration. So there's nothing that stops a minority member or minority ranking member from sending a letter and requesting information. But as the recipient of that, you might not give as fulsome of a response to that minority entity because they don't have the ability to issue a subpoena. My caution would be, today, we're sitting in May, but come November, that person that's requested that letter that sits in the minority today could become, you know, Madam Chair, Mr. Chair. And so you wanna, you wanna account for that and probably, you know, work on a strategy that satisfies their inquiry in this Congress, so it doesn't become escalated in the next.

LVV (10:40) 

Thank you. What about a company that's currently in the middle of a Congressional investigation? Obviously, every case is different, but is there some general advice you could share with companies that are already in the midst of the storm?

KM (10:53) 
Hopefully, Lee, they have already hired experienced counsel to help them navigate in this extremely challenging circumstance and, you know, if not, they can always reach me. my email is Kristina.moore@wbd-us.com. I'd hesitate to give general advice because it really needs to be bespoke to the situation.

LVV (11:11) 

Fair enough. As you've explained before, one of the biggest decisions a company under investigation has to make is when to fight and when to comply, or whether to fight and whether to comply. What would you say to a corporate leader having to make that tough call?

KM (11:26)

There's going to be a lot of opinions internal to the company about you know, when to fight and, and, and when to, to not. My advice would be that you need to line up all the relevant risk; legal risk, reputational risk, business risk. And you need to measure that against the temperament of the committee staff, of the committee chairman the inherent power to compel, and the zeal that they have expressed in pursuing the investigation. Meaning, is this a front-burner issue or is it a back-burner issue? So generally, you know, there is a lot of opportunity for negotiation to thread the needle and to comply in a way that doesn't impact the business too heavily. So again, what are your risks? What type of risks are they? How energized is the committee? And is there a path towards compliance that isn't, you know isn't too harmful against the, against the company or the relevant considerations?

LVV (12:23) 

Are there any mistakes that are common that companies make when they're being scrutinized by Congress?

KM (12:27)

Yeah. I think if you're viewing this as a pure legal matter or a pure political exercise, it's not the right lens. It's neither, it's neither and both at the same time. There's also a communications element, in the most high-profile, of matters. So, I think it's very critical to have somebody, you know, as you're thinking of your team, you know, who's going to be guiding the company on a investigation, it's important to have those different seats at the table, government affairs, communications and legal.

LVV (12:57)

Great. Well, look, we're coming to the end of our allotted time, so a final question for you. Could you conclude with just some general principles that companies can practice now regardless of whether they are in an ongoing Congressional investigation or not?

KM (13:10)

Yeah. Well, investing in relationships is very important. I highly recommend getting to know your Members, who represents you, understand what committees they sit on, and who they influence, and who influences them. Also, you should anticipate your vulnerabilities and identify and implement mitigation strategies, like an affirmative communication strategy, good internal and external communications hygiene. We've also talked about records retention policies. Those are all, you know, good hygiene and things that you should be doing today.

LVV (13:41)

That's great. Thank you. That's all we have time for today. Thank you, Kristina, and thank you to all the clients who are listening. Please do not hesitate to reach out to Kristina for some customized advice beyond these general guidelines.

KM (113:53)

Well, thanks so much, Lee. I appreciate your time

PODCAST OUTRO (14:09)

Thank you for listening to Womble Perspectives. If you want to learn more about the topics discussed in this episode, please visit the show notes where you can find links to related resources mentioned today. The show notes also have more information about our attorneys who provided today's insights, including ways to reach out to them. Don't forget to subscribe via your podcast player of choice so that you never miss an episode. Thank you again for listening.