Democrats Win Big: What Companies Should Know Now About Coming Congressional Oversight – and What to Watch in the Weeks Ahead
The results are in: Democrats will control both the House and Senate in the next Congress. From their perch in the minority over the past two years, Democrats have laid the groundwork for a robust oversight agenda focused on “costs, chaos, and corruption” once they retake the gavels. With less than two years to complete core investigative work and deliver results, expect Democratic investigators to move quickly.
But the oversight landscape has evolved materially since Democrats last retook a majority during the first Trump Administration. And key leadership decisions need to be made during the upcoming lame-duck session and the opening days of the 120th Congress that will significantly impact how the new Democratic majority in each chamber pursues its investigations.
Here’s what companies should know now about the shifting congressional oversight landscape – and what developments they should monitor heading into the new Congress and beyond.
What to Know Now
1. Companies Will Likely Be Targets, Even When the Administration Is the Focus
Incoming Democratic Committee Chairs are likely to treat many private-sector companies as primary repositories for information, not simply fallback sources if the Executive branch is deemed uncooperative. Wiley previously outlined how companies and executives that have engaged with the Administration may quickly face demands for documents and testimony precisely because Congress expects private parties to have fewer defenses – and to be more cooperative – than the coequal Executive branch.
Importantly, a company does not need to be accused of wrongdoing to find itself on the receiving end of an oversight request. Simply possessing potentially relevant records may be enough to get caught in the crossfire. Indeed, a likely incoming House Committee Chair, discussing planned investigations into corporate giving to Administration-backed projects, recently emphasized that “third parties can be hauled in to testify about these projects and about their communications with administration officials” under a Democratic majority. Companies should be thinking now about what documents and information in their possession might come into scope.
2. Committees Are Increasingly Pursuing Closed-Door Testimony
As Wiley previously detailed, Congress is increasingly seeking closed-door testimony from private-sector witnesses, including executives, contractors, consultants, and researchers. Expect more of it under a Democratic majority.
A key tool for obtaining closed-door testimony is a transcribed interview (TI) – a unique congressional oversight proceeding where a witness answers a committee’s questions on the record, behind closed doors, memorialized by a court reporter. Although a TI mirrors a traditional deposition in certain respects, there are important differences, such as the absence of formal rules of procedure and no third-party judge readily available to adjudicate any challenge lodged.
Committees are increasingly turning to TIs to build factual records efficiently, rather than waiting for document productions or relying only on public hearings to secure testimony. While participation is voluntary, individuals who receive a TI request should take these proceedings seriously – statements made during TIs have resulted in referrals to the U.S. Department of Justice (DOJ) as well as criminal charges for a witness’s alleged false statements to Congress. And recently, some committees have started to videotape certain TIs and clip, package, and post select exchanges online, leading to viral moments that drive media coverage and pose significant reputational risks.
Any organization that expects to receive congressional oversight scrutiny next year should be preparing to navigate TI requests and the particular risks they pose.
3. Congress and the Courts Appear to Diverge on Common-Law Privileges – But Much Uncertainty Remains
Congress has long held the position that its investigative powers are not constrained by common-law privileges, such as the attorney-client privilege or work-product doctrine. Do not expect Congress to change its position under the new Democratic majority.
Nevertheless, the privilege landscape is actively evolving and may provide parties more leverage to assert common-law privileges before Congress than in the past. In July 2026, the U.S. Court of Appeals for the D.C. Circuit issued an opinion affirming White House advisor Peter Navarro’s conviction for contempt of Congress. In doing so, the unanimous three-judge panel expanded on dicta from the U.S. Supreme Court’s 2020 opinion in Trump v. Mazars to observe: “Recipients of congressional subpoenas ‘retain common law and constitutional privileges’ against governmental demands for the disclosure of requested information.”
Read plainly, the D.C. Circuit’s Navarro opinion provides a meaningful source of authority supporting the position that parties do, in fact, retain common-law privileges before Congress. But the D.C. Circuit is not the last word on the matter, and the practical implications of the Navarro opinion are still unfolding. Targets of congressional oversight should therefore carefully assess how to approach common-law privilege assertions when responding to a congressional investigation.
4. DOJ’s New Opinion on Executive Privilege Could Rope Private Parties into an Interbranch Dispute
The Executive privilege landscape has also evolved materially – and private parties should take note. In August 2026, DOJ’s Office of Legal Counsel (OLC) issued an opinion concluding that Executive privilege can cover confidential communications between the President or certain White House advisors and private parties outside the Executive branch if those communications relate to official Presidential decision-making. By its terms, the privilege may apply to communications with “anyone the President consults outside the Executive Branch,” including “members of the public, state officials, or employees of other branches of the federal government.” In a footnote, OLC left the door open to extending its reasoning to a broader set of “other White House officials’ communication with private persons.”
On its face, OLC’s reasoning could apply to a private party’s emails, text messages, or other communications with the White House if certain conditions are met. But importantly, and as the D.C. Circuit’s Navarro opinion underscored, only the President can invoke Executive privilege – a private party cannot do so.
The practical result of the OLC opinion is that some parties may find themselves caught in the middle of an interbranch dispute next Congress, with a committee subpoena on one side and the White House’s confidentiality concerns on the other. Private parties that have engaged with the White House should incorporate the OLC opinion into their broader privilege review processes, assess its application, and plan their response strategies accordingly.
What to Watch in the Weeks Ahead
1. Who Holds the Gavels
Leadership elections and committee assignments will determine who holds each committee gavel – and which investigations are prioritized out of the gate. Several retirements, particularly in the Senate, will likely elevate new Committee and Subcommittee Chairs who have not traditionally led investigations. Many presumptive Chairs in both the House and Senate have spent the past two years as Ranking Members sending letters, issuing reports, and making preservation requests that preview their priorities.
Companies should revisit that record, including any minority letters they received this Congress, and view it as a roadmap for what may come next. Companies should also closely monitor the final margins in both chambers, which will be important for determining committee ratios and Chairs’ ability to enforce subpoenas.
2. What Rules Are Adopted
Rules adopted at the start of a new Congress can expand committees’ investigative powers – especially when there is a pent-up interest in conducting oversight. For example, at the start of the 116th Congress, the new House Democratic majority adopted a rules change allowing committee counsel to take depositions without a Member present, making it easier for committee staff to plan for and conduct depositions. During the 118th Congress, the new House Republican majority adopted rules that limited the number of attorneys a private party can bring to a deposition (no more than two attorneys), giving Congress more leverage in negotiations for closed-door testimony.
After rules are adopted for each chamber, every committee has the opportunity to issue new committee-specific rules – which can be consequential. For instance, the Senate Homeland Security and Governmental Affairs Committee (HSGAC) changed its rules this Congress to allow the Chair to issue subpoenas unilaterally, without the minority’s consent or a committee vote. Chair Rand Paul (R-KY) has since used that authority. Expect HSGAC Democrats to maintain this rule change.
Companies should closely review the rules packages adopted at both the chamber and committee levels and assess how any changes may impact the tools available to congressional investigators and the potential escalation options they have in any resulting inquiry.
3. Whether New Oversight Vehicles Are Created
Leading up to the election, Democratic leaders were reportedly considering several new vehicles to advance their oversight agenda, including potentially standing up a select committee. In recent years, some of the most significant oversight activity has been generated by select committees, such as the Select Subcommittee on the Coronavirus Crisis, the Select Committee to Investigate the January 6th Attack on the United States Capitol, and the Select Subcommittee on the Weaponization of the Federal Government.
There are several potential new oversight vehicles that companies should be monitoring, including the following:
Select Committee on AI. House Democrats are reportedly considering a select committee on artificial intelligence (AI), which would likely be charged with a broad investigative mandate into the tech industry. An AI select committee could help Democrats organize their multipronged AI oversight efforts under one umbrella, facilitate a coordinated approach to industry probes, and provide a vehicle for Members to hire specialized staff dedicated to AI. Although House Minority Leader (and presumptive incoming Speaker) Hakeem Jeffries (D-NY) is reportedly open to the concept, House Energy and Commerce Committee Ranking Member Frank Pallone (D-NJ) – whose standing committee has primary jurisdiction over much of the AI portfolio – indicated he was opposed to an AI select committee, muddying its prospects.
Pentagon Oversight Subcommittee. Democrats on the House Armed Services Committee are reportedly considering reviving an oversight subcommittee that could scrutinize the Pentagon’s dealings with private industry, government contracting decisions, and Secretary Pete Hegseth’s stewardship over the Department. Ranking Member Adam Smith (D-WA) chose to eliminate this subcommittee the last time he held the gavel, but he has more recently signaled an interest in deploying oversight tools, such as subpoenas, to “try and get more honest answers” in connection with several issues, including alleged corruption in the awarding of defense contracts.
Oversight Compliance Subcommittee. When Republicans retook the House in 2022 and faced high expectations for conducting oversight of the Biden Administration, they stood up a subcommittee dedicated exclusively to monitoring parties’ compliance with congressional oversight. To do so, the House Judiciary Subcommittee on Responsiveness and Accountability to Oversight held a series of “compliance” hearings, primarily with federal legislative affairs officials, where Members questioned witnesses about granular details of their departments’ response actions – such as the number of responsive documents identified but not produced, the basis for redactions, the names of individuals working on the response team, and the legal justification for any materials withheld.
While House Republicans decided to base this compliance subcommittee in the Judiciary Committee, Democrats could use a broader platform – and expand its witness list beyond federal officials – if they decide to revive this approach. Members of a company’s response team should not assume they would be exempt from testifying.
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Democrats will return to the majority in both chambers emboldened to move quickly and aggressively. Companies that understand how the oversight landscape has changed – and use the coming weeks to prepare – will be far better positioned to navigate congressional scrutiny effectively. Wiley’s Congressional Oversight and Investigations team can help your organization anticipate its risks before gavels change hands and prepare strategically for what comes next.
