Political engagement is getting trickier by the day. Companies should consider whether decisions made in the current environment could draw heightened investigative scrutiny if control of Congress changes or when the administration shifts after the 2026 midterm or 2028 presidential elections, respectively.
Additionally, investigative scrutiny of a company’s political activity is unlikely to recede regardless of which party holds power. As a result, not only does one need to know the applicable laws but also what may be uncovered in a future investigation. Companies can prepare for potential inquiries by conducting their own reviews.
The available options fall along a spectrum, ranging from simply talking to employees who might have been involved in an incident to a full-blown internal investigation. When advising clients, we have them consider the following factors.
Remember why you’re doing an internal investigation. The primary purpose of an internal investigation is to get to the bottom of what happened and, if necessary, take appropriate remedial steps. But a well-calibrated internal investigation can also create value in other ways. It can help frame a company’s response if the government subsequently investigates the matter, allowing the company to develop defenses in advance instead of during the frenzy of a subpoena response. A company also could use such findings to strategize, such as in negotiating with the government over the scope of a subpoena.This may not only save time and resources, but also limit the risk of unnecessary exposure of company materials.
A company also could respond to a government investigation with its own findings (and remedial action) in an effort to convince officials that further investigation is unnecessary. In a May 2025 memorandum on white-collar crime, the Department of Justice’s Criminal Division directed federal prosecutors to take “all reasonable steps to minimize the length and collateral impact of their investigations,” which could include forgoing additional investigation when internal findings are readily available to the agency. A robust internal investigation and remedial action can militate against enforcement action and penalties; conversely, a lack of investigation and remediation could indicate a weak compliance program, increasing the likelihood of enforcement, penalties, and even a monitor.
Understand the type of potential violation and how it affects the scope and structure of your investigation. Potential misconduct may be criminal, civil, or a mere policy violation. A potential criminal violation may warrant a more thorough investigation than a mere breach of policy. Moreover, a potential violation in a legal area that is core to the company’s business (such as a securities violation for a broker-dealer) may warrant increased attention. The potential reputational damage from the alleged violation is also a key consideration.And how the company became aware of the violation (through an internal audit, a whistleblower report, or from press reports) is relevant.
Additionally, how you became aware of the violation, and what future scrutiny you anticipate on the matter, may inform not only where you land on the spectrum but also other requirements, such as having to take record preservation measures. As the likelihood of a subpoena becomes more concrete, companies have faced questions as to when anticipation of an eventual subpoena creates affirmative record preservation obligations. Of course, when a subpoena is certain, there is an obligation. But when a subpoena is less certain or, say, contingent on the outcome of an election, the question becomes more difficult. You should consider the circumstances, such as whether Democrats have issued a document preservation notice (as the Senate Judiciary Committee has reportedly already done for certain companies).
Consider whether you are in a highly regulated industry or the subject of heightened governmental or media scrutiny. Highly-regulated industries are in many ways held to a more stringent standard. Such companies often have heightened duties around self-monitoring reporting, which means even “minor” violations can warrant a deep investigation. For example, Office of the Comptroller of the Currency examiners have an expectation that banks notify them of violation of any law. Similarly, government contractors may have contractual or regulatory self-disclosure obligations and may be subject to applicable pay-to-play rules (where political contributions lead to an automatic ban on government contracts) that impose an affirmative duty on the company to avoid having such contracts.
Even when there is no legal duty to self-disclose, there may be a benefit to voluntarily disclosing information, even before an investigation has begun. For example, if Democrats have issued an unenforceable inquiry requesting information on a matter, a company may choose to respond in some fashion to help create a better posture should Democrats consider issuing a subpoena if they take control of the House or Senate. This doesn’t necessarily mean you should respond in detail to every question. As an alternative, you could submit a more general response. Other relevant steps may be back-channeling with the Democrats who issued the inquiry to determine if such general response is acceptable and surveying what types of responses, if any, other recipients of the inquiry may be submitting.
Be familiar with the tools you have. Your toolbox is filled with options when it comes to designing an internal investigation that makes sense for your organization and the circumstances at issue. For example, when seeking information on a particular incident, you could collect written employee statements, conduct informal employee interviews, conduct formal employee interviews with counsel, ask employees to turn over relevant emails and documents, image an employee’s company phone or laptop, or engage a third party to do a complete forensic pull of relevant documents, emails, and data logs. You also have options on how far back in time to go (e.g., based on applicable statute of limitations) or how many employees or teams to include in interviews.
Stick to the mission, unless you can’t. In-house counsel should target the investigation to the possible violation. It is important to outline the parameters of the investigation at the outset to ensure it isn’t unduly broad or vague. You should know what you’re looking for and how the search terms and interviewees could shed light on those issues. Of course, if you discover additional potential misconduct along the way, you should be nimble enough to expand the scope. But generally speaking, beginning an investigation intending to discover “everything” is the start of a painfully unproductive exercise. Sticking to the mission also creates a natural endpoint for the investigation—as soon as you are comfortable that the mission has been accomplished.
Weigh other practical considerations. There may be practical constraints on a company’s ability or appetite to undertake an internal investigation. These constraints and preferences may inform the company’s overall investigative approach, including strategically limiting the scope of an investigation. For instance, if an investigation involves a sensitive issue or a high-profile representative of your company, your organization may prefer to pull an employee’s emails rather than conduct employee interviews. You can tailor (and re-tailor) your approach to accomplish the mission while remaining sensitive to the needs, priorities, and resource constraints of your particular organization.
As you approach structuring an internal investigation, these principles and factors can help you most effectively allocate your resources to limit your organization’s legal and reputational exposure.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.
Author Information
Ki Hong is the head of Skadden’s Political Law Compliance and Investigations Group.
Lucy Kalar is an associate in Skadden’s Political Law Compliance and Investigations Group.
Jessie Liu contributed to this article.
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