When Minouche Shafik, the president of Columbia University, was asked to appear before Congress to testify about antisemitism on college campuses, 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 may now be wishing they had considered too.
Ms. Shafik was the only invited witness to decline an invitation to appear last week before the House Education and the Workforce Committee for its hearing entitled “Holding Campus Leaders Accountable and Confronting Antisemitism.” That decision spared her a public grilling that became a five-alarm crisis for the three university leaders who did attend, including one who lost her job in the subsequent uproar.
It also 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 scalps and 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. Facing threats from angry donors and a congressional investigation, Harvard’s president, Claudine Gay, managed to stay on. But that was only after its governing board deliberated about her fate well into the night on Monday and acknowledged she made mistakes in addressing the fallout to the Hamas-led terrorist attack on Israel on Oct. 7.
Ms. Shafik and Columbia University, in contrast, have skated past the entire episode. Instead of appearing on Capitol Hill last week, Ms. Shafik was in Dubai, speaking at a session of the United Nations Climate Change Conference about how climate change affects women.
While her counterparts were grilled by Republican lawmakers over their handling of antisemitic speech on campus, Ms. Shafik was reminding a rapt audience of supportive women that the term “global warming” was actually invented by Columbia University scientists.
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 Ms. Shafik, who was not threatened with a subpoena for failing to show.
Over the past decade, as Congress has become increasingly unable to legislate, the chairs of powerful committees have become more reliant on starting investigations and holding high-profile hearings, which provide easy opportunities for viral moments that can translate into media attention and a fund-raising bump.
That has raised the stakes of congressional hearings, which now carry the risk of continued congressional scrutiny, impact on pending civil litigation and even further action, in some cases from the Justice Department or a state attorney general.
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.”
The gold standard, in his mind, is when the chief executive of Apple, Tim Cook, was called to testify before a House committee on antitrust issues in 2020.
“Nobody remembers that hearing,” he said.
Ms. Loeb, who prepared Mr. Cook for that remarkably unremarkable hearing, said the most important thing is to remind clients that testifying before Congress is inherently tricky and disjointed because each lawmaker takes a turn pursuing a five-minute round of questioning.
It “does not lend itself to witnesses being able to tell their full story,” Ms. Loeb said.
Prep for clients often includes mock hearings known as “murder boards,” and a deep review of footage of successful or disastrous hearings. Ms. Loeb said she tries to pull video of people that her client might know personally, to drive home the point that doing less is more. She also encourages prospective witnesses to think in terms of passing a common sense test — sounding empathetic and human in the face of questions, rather than getting stuck in lawyerly answers that can ultimately miss the moment.
Ms. Loeb said she often uses the example of Michael Dukakis’s famous flub in a 1988 presidential debate, when he delivered a lawyerly, clinical answer when asked if he would favor the death penalty for someone who raped and murdered his wife.
That is akin to what went wrong for the university presidents, who at the tail end of a five-hour hearing were tripped up by a particularly combative round of questioning by Representative Elise Stefanik, Republican of New York, about whether calling for the genocide of Jews violated their universities’ rules on bullying and harassment.
For a chief executive of a public company under fire, refusing to testify before Congress is almost never an option, simply from a public relations standpoint. Tony Hayward, then the chief executive of BP, for example, had no choice but to appear amid public anger over the Deepwater Horizon oil disaster in the Gulf of Mexico in 2010.
Timothy J. Sloan, then the chief executive of Wells Fargo, was hauled in front of Congress in 2019 to testify about whether his bank had changed its ways after a series of scandals. He fielded four hours of intense criticism and resigned abruptly a few weeks later.
For the university presidents, there was less public pressure to appear and more opportunity to abstain.
“I would have had an orthodontist appointment,” Mr. Armstrong said.
Sharon Otterman contributed reporting.
