When Nemat Shafik, the president of Columbia University, was asked to appear before Congress to testify about antisemitism on college campuses in December, she cited a scheduling conflict and said she could not attend.
It turned out to be a response that her counterparts at Harvard University, the University of Pennsylvania and the Massachusetts Institute of Technology, who were grilled publicly at that hearing before the House Education and the Workforce Committee, may be wishing they had considered, too.
That hearing raised the question of why individuals feel obligated to appear before Congress at all — especially when they know they are walking into a high-risk situation where lawmakers with political agendas are often seeking opportunities to create viral moments by setting prosecutorial traps for their witnesses.
The president of the University of Pennsylvania, M. Elizabeth Magill, resigned four days after her appearance at the hearing, where she delivered evasive answers about campus antisemitism. Harvard’s president, Claudine Gay, similarly gave vague responses and faced fierce backlash for weeks up to her resignation in January.
In contrast, Dr. Shafik, who goes by Minouche, and Columbia University skated past the entire episode last year. Dr. Shafik was in Dubai, speaking at a session of the United Nations Climate Change Conference about how climate change affects women.
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 the negotiations with the committee that occur beforehand to avoid testimony that is likely to be disastrous.
Christopher Armstrong, a lawyer with Holland & Knight who represents clients through congressional investigations and oversight hearings, said that declining an invitation from Congress “is always on the table, unless you’re being subpoenaed.”
“The impulse is, you should testify — that it’s not a great look to refuse to cooperate,” Mr. Armstrong said. “That said, if I had a client and I realized that testifying would potentially be a disaster, I would not have them testify.”
There are, of course, risks to telling Congress thanks, but no thanks.
Failing to appear before committee lawmakers voluntarily risks they demand your presence with a subpoena. The chances of prevailing if an individual chooses to litigate the subpoena are low, according to legal experts, and few chief executives of companies want to go down that path. It can also raise the stakes: When an individual does eventually show up, either voluntarily or responding to a subpoena, they are more likely to appear on their own, and to be treated like a recalcitrant witness.
There’s also the risk of the committee hanging a nameplate over an empty chair to theatrically underscore the individual’s failure to appear.
“That is usually not in a client’s best interest,” said Emily Loeb, the chair of the congressional investigations practice at Jenner & Block LLP.
But lawyers can first try to get a committee to agree not to insist on their client’s attendance, as appears to be the case for Dr. Shafik, who was not threatened with a subpoena for failing to show in December.
Those hauled in before Congress often make the mistake of viewing it as an opportunity and assuming they can improve their standing by presenting their case in a high-profile setting.
That is wholly misguided, experts said. A “win,” Mr. Armstrong said, “is the hearings we don’t talk about.”
Sharon Otterman contributed reporting.
