How Federal Agencies Enforce Subpoenas Against Recalcitrant Witnesses

When federal agencies like the FBI or SEC need information from someone as part of an investigation, they often issue subpoenas. But what happens when someone just ignores the subpoena and refuses to cooperate? Well, the feds have ways to deal with recalcitrant (uncooperative) witnesses.

Subpoenas are no joke – you can’t just blow them off. If you get subpoenaed and don’t respond, the agency can ask a federal court to hold you in contempt. And that can mean big fines or even jail time until you cooperate. Let’s break it down:

What is a subpoena?

A subpoena is a legal order requiring someone to testify, produce documents, or both. There are two main types:

• A subpoena ad testificandum orders someone to testify, usually by appearing at a hearing or deposition.
• A subpoena duces tecum orders someone to produce documents or records.

Federal agencies can issue subpoenas directly, without asking a court. For example, the SEC, FTC, and FBI all have authority to subpoena people as part of investigations into potential violations of federal law.

What happens if you ignore a subpoena?

If you just ignore a subpoena, the agency will likely follow up and warn you to comply. But if you continue to blow it off, they can ask a federal court to enforce the subpoena.

The court will order you to show up and explain why you shouldn’t be held in contempt. If your excuses don’t fly, the judge can hold you in contempt of court for defying a lawful subpoena.

What are the penalties for contempt of court?

It depends on whether the contempt is civil or criminal:

• Civil contempt means you didn’t comply with a court order. The judge can impose fines or even jail time until you cooperate.
• Criminal contempt is for more willful defiance of the court’s authority. It can result in fixed fines or jail time.

For example, in 2019 a judge held a banker in civil contempt for refusing to comply with an SEC subpoena. He slapped the banker with a $25,000 per day fine until he cooperated.

Contempt fines can get pretty massive – like over $1 million in some cases. And jail time can be up to life in prison for criminal contempt.

What defenses can you raise against contempt?

There are a few ways you can defend yourself against a contempt charge:

• Argue you made good faith efforts to comply but couldn’t (like documents were destroyed).
• Challenge the subpoena as improper or abusive.
• Claim a constitutional or other legal right not to comply.

But the bar is high. The Supreme Court has said contempt can be avoided only when compliance would mean “sacrifice of a constitutional right.”

For example, you may have a 5th Amendment right not to produce documents that could incriminate you. But otherwise, you need an airtight excuse.

Can you negotiate or modify a subpoena?

Yes, absolutely. If a subpoena seems unreasonable or overly broad, your best move is to contact the agency and try to negotiate what you actually have to produce. They may agree to narrow the scope or give you more time.

But don’t just ignore a subpoena while trying to negotiate – make good faith efforts to comply with whatever parts you can, and document your efforts. That can help avoid a contempt finding.

What if Congress issues the subpoena?

Congress also has broad power to issue subpoenas as part of investigations and oversight of the executive branch. Under a Supreme Court case from 1928, Congress can hold anyone in contempt who refuses to comply with a Congressional subpoena.

If a house of Congress votes to hold someone in contempt, they tell the U.S. attorney to bring criminal charges. But the U.S. attorney can refuse if they think it’s unfair or unwarranted.

Some options Congress has to enforce a subpoena:

• Use the courts to declare a witness in civil contempt.
• Exercise Congress’s “inherent contempt power” to detain and try someone.
• Rely on public opinion and political pressure.

But Congress’s powers to directly enforce a subpoena are limited. They often have to rely on the executive branch to prosecute contempt charges.

Takeaways

• Federal subpoenas are not optional – ignoring them can lead to civil or criminal contempt.
• Fines for contempt can be massive, and jail time is possible too.
• Negotiate in good faith if the subpoena is unreasonable.
• Claiming a constitutional right may protect you from complying.
• Congress has some options, but less power than courts to directly enforce subpoenas.

The bottom line is you really don’t want to just ignore a federal subpoena. Get legal help to understand your rights and responsibilities. Negotiating in good faith is the best way to limit what you have to produce. Claiming a constitutional right not to comply may be a defense, but it’s a high bar. Contempt of court is real, so don’t defy federal subpoenas!