As companies weigh their exposure to oversight in the next Congress, WilmerHale Partners Alyssa DaCunha and Joel Green, and Counsel Kerry Bollerman, are helping corporate counsel understand how recent legal developments could impact the arguments available to oversight targets and offering potential steps to prepare.
In “Intersecting Investigation Risks Loom In Next Congress,” published by Law360, the authors examine how an August 2026 Department of Justice Office of Legal Counsel (OLC) opinion intersects with two July DC Circuit decisions related to congressional oversight. The OLC opinion states that the presidential communications component of executive privilege can protect certain confidential communications between the President and/or his direct advisors and private advisors who do not work for the Executive Branch.
Against that backdrop, the article traces how the courts have narrowed the procedural options available to congressional subpoena recipients. In US v. Navarro, the DC Circuit held that only the president or a formally designated representative may invoke executive privilege, and that a witness cannot assert it unilaterally on the President’s behalf. In de la Torre v. Cassidy, the court rejected an affirmative challenge to a Senate subpoena and related contempt proceedings, holding that issuing the subpoena, conducting the hearing and voting on the contempt resolutions were core legislative acts protected by the Speech or Debate Clause and therefore entitled to absolute immunity from suit.
“In this environment, oversight targets who communicated with the White House on relevant issues may find themselves in the middle of a separation-of-powers clash as they respond to congressional oversight demands while also navigating potential White House confidentiality concerns.” the authors write. Drawing on their experience advising companies and executives facing congressional scrutiny, they suggest oversight targets take steps to prepare, including identifying which officers and employees have communicated with the White House, developing communications and government relations strategies before an inquiry arrives, and formulating legal strategies.
Read the full article here.
