All Things Investigations Podcast

Kevin Carroll (00:00):

There are absolutely indelible moments from congressional hearings. Now, I criticize grandstanding at congressional hearings as much, if not more, than anybody, but we recall moments from the Iran Contra Hearings, or the Watergate Hearings, or the McClellan Committee Hearings, which The Godfather II basically had a take-off on those. History does happen sometimes.

Tom Fox (00:25):

Welcome to the Hughes Hubbard Anti-Corruption and Internal Investigation Practice Groups Podcast, all things investigations. Hughes Hubbard Anti-Corruption and Internal Investigation Practices Group represents many of the premier companies around the world, providing advice on issues spanning the full anti-corruption and compliance spectrum. In this podcast, host Tom Fox and members of the Hughes Hubbard Anti-Corruption Internal Practice Group will highlight some of the key legal issues involved in white-collar and other investigations, both domestically and internationally. We will tackle topical issues involved in investigations, as well as explore how companies can prevent and detect issues that arise in conducting investigations on a worldwide basis.

Hello, everyone. This is Tom Fox, back for another episode today. I'm thrilled to have with me Kevin Carroll. Kevin's a partner at Hughes Hubbard, and we're going to talk about congressional investigations. Why am I so thrilled about this? Because I don't know anything about this. And as everyone knows, I judge the quality of podcasts by how much I learn, and I'm going to learn a lot. And I think everyone who listens to this will as well. So Kevin, with that incredibly long-winded introduction, first of all, welcome. Thank you so much for taking the time to visit with me today.

Kevin Carroll (01:43):

No, of course. Thanks for having me on. I appreciate it.

Tom Fox (01:45):

Kevin, could you tell us a little bit about your professional background and how you got to Hughes Hubbard?

Kevin Carroll (01:49):

Sure. I have a checkered past. I started out in the Army, got out and went to law school. I was practicing law at Hughes Hubbard for a week when 9/11 happened. Uncle Sam invited me to return to work for him for a bit, so I did. I clerked for a federal judge in EDNY, the late Thomas Platt. And then again, at the suggestion of the government, I joined the CIA for six years, and I spent six years as an operations officer for CIA. Towards the end of my time at the agency, I was missing the practice of law, and I was married and had a kid on the way, so I decided to go back to law school. I got an LM in national security law at Georgetown. And coincidentally, at the same time, the Republicans won the House. And when a party wins the House, they get a 50% increase in the number of staff that they can hire.

So the Republicans took the House. I'm Irish from New York. Pete King took the House Homeland Security Committee, and he lured me away very happily from CIA to being a senior council to his committee. And I worked for Mr. King for two years, then just a little bit for his successor. I went to practice at another law firm for a couple of years. I went in-house to a client that I brought into that company for a couple more years, a company called Babel Street. And then Uncle Sam called again, and I went to work for John Kelly in the Trump administration. I left when he did, returned to private practice, and then very happily, at the end of last year, Hughes Hubbard asked me to circle back to where I started over 20 years ago. I jokingly called it the 21-year path to partnership. I'm very happy to have done it.

Tom Fox (03:16):

Kevin, did you say Judge Platt was in the Eastern District of New York?

Kevin Carroll (03:19):

He sure was.

Tom Fox (03:20):

Could you explain to the listeners the difference between the Eastern District of New York and the Southern District of New York?

Kevin Carroll (03:26):

Sure. The Eastern district is better. That's the simple answer. There's a healthy rivalry between the two, not unlike the Mets and the Yankees or the Giants and the Jets. Eastern District of New York covers Staten Island, Brooklyn, Queens, Nassau and Suffolk Counties out on Long Island. And I was at the courthouse way out in Suffolk County, which handled all federal criminal and civil matters on Long Island.

Tom Fox (03:45):

When I went to law school, there was a lot of talk about the Southern District of New York was the crown jewel. But as I now look at criminal trials and other matters coming out of the Eastern District, I have to say it looks like to me many of the more massive cases come out of the Eastern District. And I was wondering if you could give us a few words about that part of your practice or at least what you saw when you were a clerk?

Kevin Carroll (04:08):

Sure. Some shorthand for it is if the predicate of the case is a financial wire passing through Wall Street, criminal or civil, it's going to go to SDNY. If one of the key facts of the case is someone getting on or off an aircraft at John F. Kennedy Airport in Queens, it's going to go to the Eastern District. They're both very well-staffed US attorney's offices and have a great group of judges in each. I'd say the Eastern District of New York is known for a lot of organized crime trials from back in the day, good old mafia trials. And I'd say there's quite a lot of drug trafficking cases, again, specifically because of Kennedy Airport. And SDNY, because of Wall Street, would tend to have a ton of securities fraud-type cases.

Tom Fox (04:43):

Kevin, I'd like to now turn to your work on congressional committees and investigations. Could you first tell us a little bit deeper dive of the role of an attorney such as yourself on a congressional committee around investigations? How do you interact with the elected members and then how do you interact with either outside counsel or private citizens?

Kevin Carroll (05:03):

I guess the first thing I would say is it's more fun than a barrel of monkeys. It's one of the best jobs a lawyer could ever have. In Congress, there's both staff and a personal office, which works very closely with the member and back with the district and the state office. And then there's the committee staff, which is hired by the chairman, which is going to look at a particular subject matter. Our subject matter for Mr. King was homeland security, which he defined as if it happens in the United States, it's Homeland Security. And if it happens overseas but can impact the United States, it's Homeland Security. They're all very impressive about staking out their turf and protecting their jurisdiction.

So you work very, very carefully with the chairman or the ranking member, depending on whether your party is in or out of power. There's non-legal staff. There's frequently detailees from various federal agencies. We would have detailees from the FBI, the Coast Guard, other organizations such as that. Uniquely, under Mr. King's chairmanship, we had the first ever NYPD detailee to the committee, which was a real treat.

You deal with outside counsel, corporations, or individuals who retain counsel to represent them in congressional investigations, and you go about trying to scare up voluntarily cooperative witnesses that'll provide good substantive hearings. And you shoot out oversight letters to the federal government, obviously, parts of the federal government over which you have jurisdiction. And really, it is what you make it. You can send letters demanding information to anyone and see what happens.

Tom Fox (06:21):

Kevin my sense, once again, looking from the outside, is that the staff members, it's a high degree of professionalism. And whether you work for the chairman or the ranking member, the professionalism is the one thing that comes through from both sides of the aisle. Would that be a fair assessment?

Kevin Carroll (06:36):

Sometimes it could be like Forest Gump's box of chocolates. You don't know what you're going to get because there's sometimes patrons involved in the hiring, but sometimes you have extremely experienced, and as you said, professional staff. Some of the committees that deal with very technical things such as appropriations or ways and means, which writes the tax code, you're dealing with absolute subject matter experts. And every now and again, a member will go out and hire a real superstar to work on the staff. David Boyce did antitrust staff work, for example, for Ted Kennedy, Ted Kennedy's chief counsel for a while is also Stephen Breyer, who apparently had a career afterwards as well. Chuck Schumer had a scrappy young lawyer named Preet Bharara, who apparently had a decent career as well. Yeah, sometimes you'll run into a big beast.

Tom Fox (07:21):

So on the day-to-day work, could you explain to our audience, what's the difference in a perhaps district attorney or US attorney's office investigation and a congressional investigation?

Kevin Carroll (07:32):

Great question. I think the biggest difference ... and I haven't been a prosecutor, but I've worked sidesaddle with law enforcement quite a bit and defend people criminally now. I think if you're a district attorney's office or US attorney's office, you are to a degree dependent on the cases that the FBI or the NYPD, or whoever the investigators are, brings you, that get witnesses who come forward complaining. In Congress, you decide to pay attention to whatever the chairman tells you to, and you go out and you decide what subject the hearings are going to be on and who the witnesses are going to be on.

So, for example, right before I was on the Homeland Security Committee staff, Benny Thompson, Democrat of Mississippi, was the chairman, and he was understandably very concerned about the poor hurricane response to Hurricane Katrina back in 2005, which killed so many people. So a lot of his chairmanship of the Homeland Security Committee was involved in things like the Coast Guard, and FEMA, and emergency response to disasters. Congress changed hands in 2010. Mr. King lost 150 constituents on 9/11 and was the son of an NYPD commander. And so he was very interested in counter-terrorism. So the ship turned, I don't want to say 180 degrees. We still cared about things like response to national disasters, and the Democrats certainly cared about terrorism. But the searchlight goes where the chairman wants it to, so it's very directed by the chairman.

And what I was told on the first day, which has really held true in my observation in the 10 or 11 years since, is that what the chairman wants to do has to be a good idea from three standpoints. It's a three-legged stool: policy, politics, and press. It should obviously, for patriotic reasons, be good policy for the United States, or at least for the chairman's constituents. Right? Politically, it has to be, most of the times, somewhat in line with the priorities of the leadership of the House or the Senate and what they want to press, although not always, and I'll get back to that.

And then it has to have some prop in the press or else it's like the tree that falls in the forest, and nobody ever hears about it. So you want to line up all three of those things together. And if you do, you are off to the races. What I said before that I want to turn back to, you don't always have to follow what the congressional leadership wants you to do. Mr. King was very, very focused on getting Hurricane Sandy relief and also getting medical care for 9/11 victims funded essentially in perpetuity. Those were not the priorities of the House Republican leadership at most times, and he was happy to fight them on that. You can't fight House leadership or Senate leadership on everything. You can't fight your own party on everything, but you can pick a scrap here or there.

Tom Fox (10:01):

So just listening to your description, I heard the breadth and scope of everything from response to a natural disaster, Hurricane Katrina, to the US border, to medical care for 9/11, and everything in between. It sounds like the scope of Homeland Security and the investigative committee is really as broad as one can imagine.

Kevin Carroll (10:24):

Exactly. It's as broad as the chairman can make it. And so they break it down into subcommittees. So, for example, I apologize to my former colleagues if I get some of the terminology wrong. There was a border subcommittee. There was a transportation security subcommittee. There was a counter-terrorism subcommittee, and so on and so forth. So you would have staffers who had developed a real expertise in TSA airline security or in pandemic response. Mr. King used to hold one subcommittee hearing every year on pandemic response just in case because he realized that if one ever did happen, it would be a big deal.

So we had a veterinarian, because veterinarians are experts in pandemics, on the staff to help with that. It can be incredibly broad, and a couple of the committees, for example, the House Oversight and Government Reform Committee or the Senate Permanent Subcommittee on Investigations, as a practical matter, can investigate anything that they want, anything. The intelligence committees will fight really aggressively to keep other committees from playing in their sandbox, both for political reasons and for valid reasons of security. One of the really big animals, like Senate PSI as it's called, or [Hoeger 00:11:32] House Oversight and Government Reform, can really look into whatever they want.

Tom Fox (11:36):

Kevin, now I'd like to turn your hat to perhaps your role now as a counselor. But if a US company is contacted by someone, one of your former colleagues, how do you advise them to think through the process and what they're about to go through in terms of testimony, if any?

Kevin Carroll (11:55):

It's important for them to realize that it has some similarities to criminal or civil litigation, but it really is different. I've seen some lawyers who are just absolutely expert civil or criminal litigators who have no idea of even the basics of how congressional investigation goes. So you really do want to reach out to some former staff council to get some basic guidance. For one thing, you'd be surprised how often a random member of Congress sends a letter demanding information. And unless they are the chairman of a constituted bipartisan committee that's asking for something within its jurisdiction, you don't have to respond at all.

I remember counseling one client at a previous firm that received this scorching letter from Senator Warren demanding all sorts of information to just ignore it. She wasn't the chairperson of the committee, and so she couldn't back it up. Now you do want to wicker in your civil, your criminal litigators because there can be, there often are, parallel criminal investigations that are going on alongside these. Or there could be civil litigation, and documents could be turned over to Congress, which end up being pertinent to the civil litigation or vice versa, so you definitely want to hold hands with your colleagues. And of course, if something was horribly awry in the commercial investigation, you can end up in criminal trouble just because of that. But it really is its own species.

Tom Fox (13:14):

In terms of the documents that are required to be produced, many of the listeners of this podcast will know what the basic rules of discovery are. They know what the basic rules of privilege are. Did those rules apply in a congressional investigation?

Kevin Carroll (13:28):

They're different in some important ways. First, there's the whole aspect which we could talk about forever, and we'd be happy to, about whether and how subpoenas actually getting forced if the rubber is really going to hit the road. And we see a lot of that stuff in the press every day about subpoenas that have been given to the Trump administration or to former Trump administration officials, which have thus far been ignored, and nobody's been put in jail for it. The documents haven't been turned over.

On the other hand, if you do turn documents over, there's not protective orders or other things like that. If you give some hostile committee chairman sensitive business information, it could get put right in the congressional record, and there's really not anything you can do about it. Also, Congress will say that if you're a witness before the committee, you don't have attorney-client privilege, but most people will retain counsel who will assert that you do have attorney-client privilege, but Congress is under no obligation to recognize it. There have been some exceptions, but usually, you're not going to be allowed to have a lawyer sitting next to you at the witness table. And if you are, he's almost certainly not going to be allowed to interpose objections the way your counsel would defend you if you were getting beat up on the stand by another lawyer. It's different.

And then, just the dynamics of it, we've all been in civil or criminal trials about even important, interesting things where it's like watching the paint dry. If you're talking about a televised public congressional hearing, it's going to be pop, pop, pop. Right? I mean, they're looking for their viral moment on TV to lead the evening news, and so it's going to be a lot more dramatic than most of your scenes in the US district court.

Tom Fox (15:01):

One of the great things I think CSPAN has done is bring that democratic process literally to my television or my computer if I want to stream it. And over the years, I've watched a lot of hearings that weren't televised. So I'd like to maybe focus on that and ask, how do you prepare a witness for, I don't want to say run of the mill, but a non-televised, relatively routine hearing that's going to be on CSPAN?

Kevin Carroll (15:27):

You have to give them a murder board. So you need to get several of your colleagues at the law firm to play the roles specifically of some of the congressmen or senators that are going to be on there. And listen, we've all seen congressional hearings where the witness is really abused. I mean, I saw the Homeland Security Secretary being compared to Benedict Arnold the other day by a member of Congress. That kind of stuff, a judge would shut you down pretty quickly in court if you were badgering a witness like that. But the chairman of the ranking, a member of the committee, just let the fact go on, and there's not much the person can do.

So you have to prepare the witness through a murder board about the different ways to answer me. For example, in the House, generally, each member has five minutes, so it's not like a very, very lengthy examination in court where you might be on the stand for a couple of days. And what a lot of the members do, which is not very edifying, is they basically give a four minute and 50 second speech, and then say, "And isn't that right, Mr. Jones?"

It's not a very good way of fact-finding, but you're preparing a witness differently for a congressional hearing than you would be preparing a witness for a deposition or testimony in a civil or criminal trial, especially because, like I said, you can do the famous thing that you see on TV where the lawyer leans over and cups his hand and whispers in the guy's ears. But you're not going to be able to interpose that objection that's sustained by the chairman and get things back under control that way.

Tom Fox (16:51):

Kevin, I've visited with a lot of lawyers who do internal investigations for clients on governmental matters, whether it be as wide as FCPA, down to routine FTC or other investigation, then they uniformly, to a man and woman, say the biggest thing you bring as defense counsel is your credibility. When you sit across from the prosecutor, and you say, "Yes, I have the documents tied down," or, "These are all the documents," it's your credibility on the line. And that's, in large part, what will protect your client. Is that same sort of relationship occur on the congressional side of things?

Kevin Carroll (17:28):

I wish, but no, because if you're the target of a congressional investigation, it's for political reasons. It has to do more with the political or policy priorities of the party that's holding the gavel. So, for example, assuming the Republicans take either chamber of Congress, it's very clear that they're going to want to go after big tech because they think that big tech sensors them, and they think that they ... well, they did somewhat muzzle the story about Hunter Biden's laptop from coming out before the election. There's no way you're going to be able to send a lawyer to go speak to the chief counsel of the House Judiciary Committee and say, "There's no there, there. I think you should cancel your planned hearing."

Really, they're doing it for a political reasoning, and you're going to probably have your day in the barrel. Now, certainly, I think it's helpful to have a lawyer that has experience with congressional investigation that does know some of the rules, for example, whether things are going to take place in executive session or what the limits really are on badgering a witness, and some of the language, some of the House rules that are relevant there. You're going to want, unlike in a regular proceeding ... let's say the Republicans have called you in front of their committee to excoriate you. You're going to go on work closely with the Democratic side to see if they can rehabilitate your witness or at least throw in some softballs and let him catch his breath between being berated on national television.

But it's not as if you can just send Edward Bennett Williams down to just say, "No. Really, the Republicans should let go of this vote, or the Democrats should let go of this vote." It's probably not going to happen.

Tom Fox (18:55):

I just listened to a podcast on television quiz shows scandals, specifically 21 back in the 50s. And the thing that actually I found relevant to our discussion was the person who blew the whistle on that scandal was a guy named Herb Stimple, and Herb had gone to the New York press. He had gone to the New York prosecutors and was able to get no relief in either of those, but he brought that story to Congress and got congressional hearings on it. Is it still true that a concerned citizen can raise an issue that could lead to a congressional investigation?

Kevin Carroll (19:30):

Absolutely. And you get calls from whistleblowers all the time, and you get calls from concerned citizens all the time, some of which are absolutely crazy. Right? You know what I mean? You have to politely leave them go. And others of which, yeah, absolutely do raise serious issues, which people are unaware of. And also, federal prosecutor or state prosecutor is, in good ways, limited in certain things that they can do. Whereas a congressional committee can maybe take somewhat more of a broad ...

One example I could think of would be the Alger Hiss Hearings in the 1940s. Right? I mean, there wasn't really a provable espionage case that the FBI and DOJ could have brought against Hiss at that time. But Congress called him in front of the House on American Affairs Committee, and Congressman Nixon asked some tough questions. And he perjured himself, and that was the end of it. So it's absolutely the case that a person can bring something to the attention to Congress, and we'll get action on it. I mean, not to try to drum up work for myself. Obviously, it's more helpful if you can call and say, "Hey, I'm a former Republican or Democratic counsel to this committee. I know what it is that you do, and I think this would be of interest to your boss."

Tom Fox (20:37):

It's fascinating that I cited to you hearings from 50 years ago, and you cited back to me hearings. I cited 70, and you cited hearings from 80 years ago, and it really drove home the message to me that in our consciousness, our collective public consciousness, are some great congressional hearings. And it doesn't matter when. You could name any one, and most of us would know what they are. Do the staff members, not the representatives, do they understand the sense of history that you bring that went before you, and really your game just always has to be on?

Kevin Carroll (21:11):

The reason I remembered the Hiss Hearing off the top of my head is that took place in the committee room that I served in. And some of the rooms really do lend gravitas to the proceedings. And then, when the gallery is packed, and when the press gallery is packed, and you have photographers literally laying on the floor between the dais and the witness table, and every time the witness makes any sort of gesture or face, there's this cacophony of camera shutters going off. And flashbulbs are popping, and there's demonstrators that are getting hauled out by the Capitol police. You realize that this is a big casino as Chris Mathews used to say.

And there are absolutely indelible moments from congressional hearings, and I criticize grandstanding of congressional hearings as much, if not more than anybody. But we recall moments from the Iran Contra Hearings, or the Watergate Hearings, or the McClellan Committee Hearings, which The Godfather II basically had a take-off on those. History does happen sometimes.

Tom Fox (22:09):

Kevin, unfortunately, we are near the end of our time for this episode, but I was wondering if our listeners wanted any more information on yourself, on any of the topics we've touched on, or the Hughes Hubbard practice in this area, what would be the best resource for them to go to?

Kevin Carroll (22:21):

Sure. So we're at kevin.carroll@hugheshubbard.com, and we have a section on congressional investigations on our website. Any congressional investigation's practice worth it's salt is bipartisan and bicameral. So I work with Kenyan Brown, who is a Democratic staffer with a lot of Senate side experience. And I'm a ex-Republican with a lot of House side experience. And I have a continuing legal education program that I give on congressional investigations. And as you can tell, there's really nothing I'd like more than to pop a beer and just tell war stories about congressional investigations all day.

Tom Fox (22:53):

Kevin, I can't tell you how much I've enjoyed this. I said when this podcast started, I judge podcasts by how much I learned, but actually, there's a second criteria, how much fun it was. And this one was a ton of fun as well, so I hope we can continue this conversation at some point.

Kevin Carroll (23:07):

Tom, I'd love to. Give me a holler if you get a congressional spin.

Tom Fox (23:11):

It's a deal.