To testify or not to testify in Congress? Your job could be on the line.

When Minouche Shafik, the president of Columbia University, was asked to appear before Congress to testify about anti-Semitism 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 wish they had thought about, too.

Ms. Shafik was the only invited witness who declined an invitation to appear before the House Education and Workforce Committee last week for the hearing titled “Holding Campus Leaders Accountable and Confronting Anti-Semitism.” That decision spared her a public row that turned into a five-alarm crisis for the three university leaders who did attend, including one who lost her job in the ensuing uproar.

It also raised the question of why individuals feel obligated to appear before Congress in the first place – especially when they know they are entering a high-risk situation where lawmakers with political agendas are often looking for scalps and opportunities to create viral moments through prosecution traps to set up for their witnesses.

University of Pennsylvania President M. Elizabeth Magill resigned four days after her appearance at the hearing, where she gave evasive answers about anti-Semitism on campus. Faced with threats from angry donors and a congressional investigation, Harvard President Claudine Gay managed to stay on. But that was only after the board of directors deliberated its fate late into the night on Monday and admitted that it had made mistakes in handling the fallout from the Hamas-led terrorist attack on Israel on October 7.

Ms. Shafik and Columbia University, on the other hand, 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 the impact of climate change on women.

As her counterparts came under fire from Republican lawmakers for their handling of anti-Semitic speech on campus, Ms. Shafik reminded an enthusiastic audience of supportive women that the term “global warming” was actually invented by scientists at Columbia University.

Lawyers who prepare clients to testify before Congress say that while there are risks to not appearing, it is always an option. And there are opportunities in advance negotiations with the committee to avoid testimony that is likely to be disastrous.

Christopher Armstrong, an attorney at Holland & Knight who represents clients through congressional investigations and oversight hearings, said declining an invitation from Congress “is always on the table unless you are subpoenaed.”

“The impulse is that you have to testify – that it’s not nice 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 wouldn’t let him testify.”

Of course, there are risks involved in thanking Congress, but no thanks.

If you fail to appear before the committee’s lawmakers, you voluntarily risk your presence with a subpoena. The chances of winning if an individual chooses to litigate the subpoena are low, according to legal experts, and few company CEOs want to take that route. It can also raise the stakes: When a person eventually shows up, either voluntarily or in response to a subpoena, he or she is more likely to appear on their own and be treated as a recalcitrant witness.

There is also the risk that the committee will hang a nameplate above an empty chair to theatrically emphasize that the person has not appeared.

“That’s usually not in the client’s best interest,” says Emily Loeb, chair of the congressional investigations practice at Jenner & Block LLP.

But lawyers can first try to get a committee not to insist on their client’s presence, as appears to be the case for Ms. Shafik, who was not threatened with a subpoena for not showing up.

Over the past decade, as Congress has become increasingly unable to legislate, the chairmen of powerful committees have become increasingly dependent on launching investigations and holding high-profile hearings, which provide easy opportunities for viral moments to unfold. translate into media attention and fundraising. raised bump.

That has raised the stakes of congressional hearings, which now carry the risk of continued congressional scrutiny, impact on pending civil lawsuits and even further action, in some cases from the Justice Department or an attorney general.

Those brought before Congress often make the mistake of seeing it as an opportunity and assuming that they can improve their position by presenting their case in a high-profile setting.

That is completely misplaced, experts say. A “victory,” Mr. Armstrong said, “is the hearings that we don’t talk about.”

The gold standard, he said, is when Apple CEO 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 awkward and disjointed because each lawmaker takes turns in a five-minute round of questioning.

It “does not lend itself to witnesses being able to tell their full story,” Ms. Loeb said.

Preparation for clients often includes mock hearings known as “murder boards” and an in-depth review of footage from successful or disastrous hearings. Ms. Loeb said she tries to take videos of people her client may know personally to make the point that doing less is more. She also encourages potential witnesses to think in terms of passing a common sense test – sounding empathetic and human when asked questions, rather than getting bogged down in legal answers that can ultimately miss the point.

Ms. Loeb said she often uses the example of Michael Dukakis’ famous blub in a 1988 presidential debate, when he gave a legal, clinical answer to the question of whether he supported the death penalty for someone who raped and murdered his wife.

That’s similar to what went wrong with the university presidents, who at the end of a five-hour hearing were caught in a particularly combative round of questioning by Rep. Elise Stefanik, Republican of New York, about whether they violated the call for the genocide of Jews their universities’ rules on bullying and harassment.

For a CEO of a publicly traded company under fire, refusing to testify before Congress is almost never an option, simply from a PR perspective. For example, Tony Hayward, then CEO of BP, had no choice but to appear amid public anger over the 2010 Deepwater Horizon oil spill in the Gulf of Mexico.

Timothy J. Sloan, then the CEO of Wells Fargo, was dragged before Congress in 2019 to testify about whether his bank had changed its practices after a series of scandals. He endured four hours of intense criticism and abruptly resigned a few weeks later.

For university presidents, there was less public pressure to show up and more opportunities to abstain.

“I would have had an appointment with an orthodontist,” Mr Armstrong said.

Sharon Otterman reporting contributed.