The second Trump administration begins with Republicans controlling both chambers of Congress and a conservative Supreme Court majority. While attention is focused on what single-party control means for executive branch enforcement and policy, it’s important to remember congressional investigative powers. This year, those resources are likely to shift toward the private sector. Indeed, in areas where policy or legislative questions are unsettled, Congress may lean on investigations to highlight priorities.
With less interest in investigating Republican-led executive agencies, Congressional Republicans are poised to turn attention to companies and their CEOs, especially given the political advantages of doing so. Shifts in the law and politics of congressional investigations have raised the stakes. Contempt votes and criminal charges appear more likely now than ever.
Companies with exposure on issues of congressional priorities should prepare accordingly, including through risk assessments and/or table-top exercises to identify and potentially mitigate any legal or reputational damage from a high-profile congressional investigation.
Factors Driving Congressional Investigations
Several factors are converging to increase the likelihood of congressional investigations targeting private companies and, in particular, public hearing testimony of CEOs:
- Single-Party Control: With Republicans controlling both the executive branch and Congress, there is less likelihood of them investigating executive branch agencies. This leaves investigative staff and resources available to focus on the private sector.
- Success of Private Sector Investigations: Congressional committees have had significant success with private sector investigations in recent years. The House Judiciary Committee, in particular, has been effective in spotlighting corporate practices and creating pressure for change. This will inspire others to do the same.
- Convergence of Priorities: There has been a convergence in the priorities of Congress, the incoming leadership of federal agencies, and state attorneys general. We expect parallel investigations on antitrust, privacy, child safety, ESG and DEI policies, and more. This is a recipe for cooperation and information sharing, as well as competition to be first and claim credit.
Increased Risks in 2025
As investigations of the private sector become more likely, they are also becoming riskier.
Most House and Senate committees have subpoena power to compel records or testimony. In recent years, congressional committees—particularly in the House—have increasingly issued subpoenas, sometimes after asserting that voluntary requests were unmet. This shift raises the stakes for companies and CEOs, who now face a greater risk of criminal contempt referrals for noncompliance.
Congressional use of criminal contempt. The risk of being prosecuted for criminal contempt is dependent upon the Executive Branch agreeing with Congress that the conduct should be prosecuted, and is highest when the House or Senate and the DOJ are controlled by the same party. This is due to Congress’s dependence on the DOJ to prosecute any criminal contempt resolution passed by either chamber.
For the last 40 years, the risk of prosecution was largely theoretical. However, in 2021, former Trump officials Steve Bannon and Peter Navarro were prosecuted for failing to comply with subpoenas by the Select Committee on the January 6 Attack on the US Capitol. Their prosecutions offered valuable lessons about the importance of properly raising objections, and the value of engaging in good faith with Congress. In contrast to Bannon and Navarro, Mark Meadows and Dan Scavino were also held in contempt, but the DOJ declined to prosecute. The difference: Meadows and Scavino meaningfully engaged with the committee, unlike Bannon and Navarro. While engagement with the committee likely prevented Meadows and Scavino from being prosecuted by former President Biden’s DOJ, it is unclear if that will be DOJ’s standard for prosecution under Republican control.
What this means going forward. The Senate has also shown bipartisan interest in asserting its criminal contempt powers. This past September, the Senate voted unanimously to hold a healthcare CEO in contempt for failing to appear and testify before a committee. Contempt referrals and prosecutions for noncompliance with congressional subpoenas will likely continue, as Republicans map their investigative priorities across the legislative and executive branches.
Preparing for Potential Investigations
As the new Congress organizes and the new administration takes the helm, now is the time for companies to prepare for both new and continued scrutiny. Across both the Senate and House, incoming chairs of committees have indicated they plan to use committee powers to lead investigations into:
- ESG and DEI Policies. Congressional committees are targeting corporate environmental and diversity initiatives, especially where they intersect with spending or shareholder interests. Expect scrutiny of policies perceived as partisan or misaligned with fiduciary duties. This will be especially challenging as companies navigate compliance with state and international ESG and DEI laws, regulations, and expectations.
- Privacy, Cybersecurity, and Consumer Safety. Data privacy, cybersecurity breaches, and online safety—especially for children—are major focus areas. Investigations could target companies for insufficient safeguards, mishandling user data, or alleged practices that harm consumers. Expect heightened attention to AI tools, algorithmic bias, and how businesses secure sensitive data from external threats.
- China, Trade, and National Security Risks. U.S. operations in China, foreign partnerships, and supply chains are under the microscope. Congress is likely to investigate U.S. companies’ compliance with export controls, ties to state-owned enterprises, and exposure to risks that could jeopardize national security.
- Corporate Practices and Market Power. Antitrust and pricing practices in sectors like technology, healthcare, and transportation are top concerns, garnering bipartisan support. Investigations could extend to mergers, pricing practices (e.g., airline fares or pharmacy benefit managers), and perceived harm to consumers from market concentration. Trade associations may also face scrutiny as representatives of industry-wide practices.
- Federal Spending and Government Contracts. Companies with government contracts should prepare for investigations into spending, compliance, and perceived waste. These investigations could also be a proxy for broader ideological debates, such as opposition to perceived progressive initiatives or related to federal deficit and spending.
Conclusion
As the legislative and executive branches align, risk to private companies grows, with the possibility of parallel investigations by Congress, federal agencies, and state regulators. At the same time, there is a strong need to balance competing laws and regulations overseas. As such, it is imperative to understand these legal risks across multiple jurisdictions, ensuring that a narrative in one does not do harm in another.