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Private sector entities should plan to respond to potentially more, broader, and accelerated investigations following changes in oversight tactics.

By Nicholas Lloyd McQuaid, Jonathan Su, Vanessa Le, and Edward N. Siskel

Latham’s Congressional Investigations Practice recently hosted a bipartisan, bicameral panel featuring senior congressional staff discussing how congressional oversight has evolved and what private entities should consider after the midterm elections. The panel shared the following practical steps companies can take now to prepare for shifts in oversight focus, tactics, and tools.

Key Takeaways

Early and Cooperative Engagement Is Critical

  • Proactive outreach: Committees often send broad initial requests, either through a formal letter or informal email outreach. In many instances, early, constructive dialogue can narrow the scope of these requests and help clarify the focus of the inquiry. The panel stated that a helpful posture is for companies to use their government affairs resources to monitor committee priorities and anticipate potential activity so that, under appropriate circumstances, they can proactively reach out prior to formal requests.
  • Responding to sector-wide letter “blitzes” requires a thoughtful approach: When congressional committees or individual members send a similar letter to many companies in the same industry, each company should carefully determine an appropriate response. Entities that do not respond or send incomplete responses stand out when others cooperate fully, potentially triggering follow-up. Companies should aim for timely responses, and should be aware that committees could analyze responses across sectors for indications of industry viewpoints or vulnerabilities.
  • Government relations functions should not be sidelined: Companies can ensure an effective approach to oversight by integrating their government relations, communications, and legal functions. Companies’ government relations staff can help ensure that committee members and their personal office staff understand the company’s facts and narrative.

Rank-and-File Members on House Committees Are Driving Investigations

The traditional concentration of investigative power and strategy in committee chairs and senior members is shifting. Under the revived House Rule XI clause 2(k)(6), any committee member can force a subpoena vote under a “2(k)(6) motion.”  If that member, regardless of seniority, gets majority support for the subpoena, the Chair has a ministerial duty to sign it.  We have seen this dynamic play out in recent House investigations. Specifically, down dais members are using the 2(k)(6) motion to empower themselves, changing overall committee dynamics.

  • Compulsory process and aggressive tactics are escalating: Some members are compressing traditional timelines — where a recipient may be extended multiple extensions for a response — escalating quickly to compulsory process. Committees are increasingly recording depositions, and some committees have begun publicly releasing deposition videos (a tactic that can be effective in encouraging voluntary cooperation).

A Potential Change in House Majority Would Reshape Oversight

If Democrats take control of the House, companies should expect committees to launch a flurry of accountability-related investigations, many of which would focus on how private sector entities have engaged with the Trump administration, from industrial policy deals involving government investment, to donations to causes seen as related to the administration, to connections with the Trump family’s financial interests. If Republicans retain the Senate, companies can expect the Senate to focus more on legislation while the House’s oversight investigations continue.

  • Bicameral dynamics are informal but influential: Staffers maintain relationships across chambers and informally share priorities. The increasing number of former House members serving in the Senate has introduced institutional changes and new dynamics for this type of information sharing.

The Private Sector Is an Increasingly Attractive Target

When the administration refuses to engage on congressional requests, or forces litigation on those requests, Congress turns to private sector proxies as an easier target who may be more swayed by the reputational risk of appearing at a public hearing. And, historically, the private sector has been in a position to raise separation-of-powers or Executive privilege concerns. Depending on how much legislation is happening in the Senate or House, oversight investigations into private sector proxies can allow members to advance policy priorities that are stalled legislatively.

The New OLC Executive Privilege Opinion Faces Skepticism

In August 2026, the Department of Justice Office of Legal Counsel (OLC) released an opinion presenting a novel position: Executive privilege can extend to the President’s communications with private advisors. Under the opinion’s three-part framework, a protected communication must: (1) relate to presidential decision-making, meaning it was made while the President was performing his duties “and made in the process of shaping policies and making decisions”; (2) involve the President or his “direct advisers,” a term the opinion does not fully define; and (3) be confidential when created and continue to be treated that way by the President.

Notably, the confidentiality test applies to the President’s conduct and intent, not the private party’s conduct. The opinion also expresses that if a private party releases materials to Congress, or a third party discloses information, privilege is not necessarily waived. Because key terms are undefined and there is little relevant case law, congressional investigators have room to exploit the uncertainty, and the House may be prepared to litigate the opinion if private actors invoke the privilege.

Oversight is likely to become more adversarial. Private individuals and companies that receive oversight requests should be ready to determine who took part in the relevant communications, whether those individuals were acting in an official or personal capacity, and what records exist. Private sector entities handling documents that have a direct nexus to the White House should also consider coordinating with the Office of White House Counsel on privilege issues, and plan ahead for how to handle requests for communications for which the White House may have views.