15 Sep 23

How Federal Agencies Enforce Subpoenas Against Recalcitrant Witnesses

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Last Updated on: 16th September 2023, 03:04 pm

How Federal Agencies Enforce Subpoenas Against Recalcitrant Witnesses

When a federal agency issues a subpoena to obtain documents or testimony as part of an investigation, the target of the subpoena is legally required to comply. However, sometimes targets refuse to cooperate fully with the subpoena, becoming what is known as a “recalcitrant witness.” In these cases, federal agencies have several options to compel compliance.

Contempt of Congress

If the subpoena is issued by Congress, one option is to cite the recalcitrant witness for contempt of Congress. This is done by the committee or chamber that issued the subpoena voting to approve a contempt resolution. The Supreme Court has recognized Congress’s authority to issue subpoenas and punish recalcitrant witnesses in order to carry out investigations related to potential legislation.

However, Congress’s power to investigate through subpoenas is not unlimited. The Supreme Court has said Congress cannot investigate someone purely to uncover wrongdoing or expose damaging information for political gain. There must be a “legitimate legislative purpose” behind the subpoena.

If a recalcitrant witness is held in contempt by Congress, there are two main ways the contempt can be enforced:

  • Congress can order the Sergeant at Arms to arrest and detain the witness until he or she complies. However, this practice of “inherent contempt” has not been used for almost a century.
  • Congress can refer the matter to the U.S. Attorney for the District of Columbia to bring criminal contempt charges against the witness. If convicted, the witness faces fines and up to 1 year in prison.

Civil Enforcement by Federal Courts

Alternatively, federal agencies can turn to the courts to enforce a subpoena against a recalcitrant witness through civil proceedings. Congress passed legislation in 1857 that allows federal courts to enforce Congressional subpoenas. Most federal agencies have similar authority granted by statutes related to their investigations.

To begin civil enforcement, the federal agency asks the Department of Justice to file a civil lawsuit on their behalf asking a federal court to order compliance with the subpoena. The court reviews whether the subpoena meets standards of “reasonableness” – that is, that the information sought is relevant and specific enough to the agency’s investigation.

If the court agrees to enforce the subpoena, it issues an order requiring the witness to comply. Failure to follow the court order can result in the witness being held in contempt of court, facing fines or jail time until compliance is met.

Criminal Enforcement by Federal Courts

In some cases, failing to comply with a federal subpoena can result in criminal charges, which are also enforced by federal courts. Under Title 18 Section 401 of the U.S. Code, it is a federal crime to “disobey or resist” a lawful court order such as one enforcing a subpoena.

Federal agencies can refer cases of recalcitrant witnesses to the Department of Justice, which can choose to prosecute it as criminal contempt of court. This may lead to fines or imprisonment for up to 1 year under federal criminal contempt laws.

Criminal contempt charges for ignoring federal subpoenas were used in recent high-profile cases, such as against:

  • Former White House counsel Don McGahn for defying a Congressional subpoena
  • Former Sheriff Joe Arpaio for violating court orders related to racial profiling

Challenges and Limitations

There are some challenges federal agencies face in enforcing subpoenas against recalcitrant witnesses:

  • The subpoena enforcement process through the courts can be slow, often taking months or years before a final court order is issued.
  • Courts give some deference to claims by witnesses that information sought by subpoenas is protected by privileges like attorney-client privilege or the Fifth Amendment.
  • Subpoena enforcement relies on cooperation by the Department of Justice, which may decline to pursue criminal contempt cases for political or resource reasons.
  • Inherent contempt powers of Congress are rarely used today and may be impractical in many cases.

Additionally, subpoena enforcement has some limitations:

  • Courts tend to give more leeway to subpoenas seen as overbroad or lacking a clear legislative or investigative purpose.
  • Subpoena enforcement cannot compel witnesses to provide oral testimony, only documents and physical evidence.
  • Statutes of limitations apply to potential criminal charges for failing to comply with subpoenas.

Overall, enforcing subpoenas against uncooperative witnesses can be a difficult task for federal agencies. However, through civil and criminal proceedings in federal court, agencies have managed to compel compliance in many high-stakes cases.


[1] “House Practice: A Guide to the Rules, Precedents and Procedures of the House”