When university presidents have testified before congressional committees about antisemitism on their campuses in recent months, the public grillings have helped to fuel a five-alarm crisis that raised a high-stakes question: Why do people feel obligated to appear before Congress at all?
M. Elizabeth Magill, the president of the University of Pennsylvania, resigned four days after her appearance at one such hearing in December before the House Committee on Education and the Workforce, where she delivered evasive answers about antisemitism on campus. Claudine Gay, Harvard’s president, gave similarly vague responses and faced backlash for weeks, culminating in her resignation in January.
Nemat Shafik, Columbia University’s president, declined to appear during that session, but her testimony at an April hearing fed growing outrage from pro-Palestinian student protesters and faculty on campus.
Lawyers who prepare clients to testify before Congress said that while there are risks to not appearing, it is always an option. And there are opportunities in negotiations with the committee that occur beforehand to avoid testimony that is likely to be disastrous.
But Christopher Armstrong, a lawyer with Holland & Knight who represents clients through congressional investigations and oversight hearings, cautioned that “it’s not a great look to refuse to cooperate.”
There are, of course, risks to telling Congress thanks, but no thanks.
Failing to appear before a congressional committee voluntarily risks that lawmakers will demand your presence with a subpoena. If an invited witness chooses to litigate a congressional subpoena, their chances of prevailing are low, according to legal experts, and few chief executives of companies want to go down that path. It can also raise the stakes; if a person eventually shows up, either voluntarily or under threat of legal consequences, they are more likely to appear on their own rather than as part of a panel of witnesses, and to be treated as a recalcitrant witness.
Still, invitees have options. Lawyers can first try to get a committee to agree that their client is not required to attend.
If they cannot, witnesses should try to make their testimony as unremarkable as possible, veterans say. Those hauled before Congress often make the mistake of viewing their appearance as an opportunity to push back on lawmakers, and assume they can improve their standing by presenting their case zealously in a high-profile setting.
That is wholly misguided, experts said.
A “win,” Mr. Armstrong said, “is the hearings we don’t talk about.”
