Understanding Federal Subpoena Power of Inspector Generals

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Last Updated on: 2nd October 2023, 05:52 pm

 

Understanding Federal Subpoena Power of Inspector Generals

Inspectors general play an important role in overseeing federal agencies and rooting out waste, fraud, and abuse. One of the most powerful tools at their disposal is the ability to issue subpoenas to compel testimony or the production of documents. This article aims to provide a helpful overview of federal inspector general subpoena power, including its scope, limits, and implications.

What is a Subpoena?

A subpoena is a writ or order commanding a person to appear before a court or other tribunal to give testimony or produce documents. Subpoenas are used to gather evidence or compel cooperation in legal investigations and proceedings.

There are two main types of subpoenas:

• A subpoena ad testificandum commands a person to testify, either in person or by deposition.
• A subpoena duces tecum commands a person to produce documents, records, or tangible objects.

If a subpoena recipient fails to comply, they may face civil or criminal contempt sanctions. This makes subpoenas a powerful investigative tool.

Inspector General Subpoena Authority

Congress has granted various federal inspectors general (IGs) the authority to issue subpoenas as part of their oversight responsibilities. This allows IGs to compel both testimony and the production of documents when investigating waste, fraud, abuse, or misconduct within an agency.

The Inspector General Act of 1978 provides the broadest subpoena power to IGs. It authorizes IGs to require by subpoena “the production of all information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence” needed for their audits and investigations[3].

Over 70 federal IGs have this authority under the Inspector General Act. It allows them to issue subpoenas without having to get approval from the agency head or anyone else[4].

Limits on Inspector General Subpoena Power

IG subpoena power is broad, but not unlimited. Some key limits include:

• Subpoenas can only be issued for materials relevant to an authorized IG audit or investigation.
• IGs cannot use subpoenas to gather evidence for purposes outside their jurisdiction or statutory authority.
• IGs must follow procedural requirements, like providing notice to the recipient.
• Recipients can challenge subpoenas in federal court on grounds like relevance, overbreadth, or privilege.
• IGs cannot enforce their own subpoenas through contempt. They must get a federal court order.

These limits aim to prevent misuse or abuse of IG subpoena power while still enabling effective oversight.

Inspector General Subpoenas vs. Grand Jury Subpoenas

There are some key differences between IG subpoenas and federal grand jury subpoenas:

• Grand jury subpoenas are issued as part of criminal investigations, while IG subpoenas are for civil audits and investigations.
• Grand jury subpoenas are generally broader in scope and harder to challenge.
• IG subpoenas cannot be used to gather evidence for a future criminal case.
• Enforcing an IG subpoena requires going to federal court; grand jury subpoenas can be enforced directly by the prosecutor.

So while IG subpoenas are powerful, grand jury subpoenas are even more formidable for compelling evidence and testimony.

Inspector General Subpoena Process

When an IG decides to issue a subpoena, they must follow certain procedural requirements:

1. The IG drafts and signs the subpoena, which must identify the parties, specify the materials sought, and provide a return date.
2. The subpoena is served on the recipient, usually by personal delivery, registered mail, or certified mail.
3. If the recipient objects, they can try to negotiate changes or file a motion to quash the subpoena in federal court.
4. If the recipient fails to comply by the return date, the IG can seek a court order enforcing the subpoena.

IG offices have developed manuals and standard protocols for properly issuing and serving subpoenas in compliance with federal regulations.

Challenging an Inspector General Subpoena

Recipients who object to an IG subpoena have a few options to challenge it:

• They can contact the IG office to ask for modifications or try to reach an agreement.
• They can file a petition to revoke or modify the subpoena with the agency head.
• They can file a motion to quash or limit the subpoena in federal district court.

Common grounds for challenging an IG subpoena include lack of relevance, overbreadth, undue burden, or that the materials are privileged. Courts will balance the recipient’s objections against the IG’s need for the information.

Inspector General Subpoena Enforcement

If a subpoena recipient refuses to comply, IGs cannot impose sanctions directly. They must first get a federal court order enforcing the subpoena.

To get a court order, the IG must file a subpoena enforcement action in federal district court. They must show the subpoena is within the IG’s authority, properly served, and the recipient failed to comply without justification.

If the court grants the order, the recipient must comply or they risk being held in contempt of court. Contempt can lead to fines or imprisonment until they comply.

However, courts give recipients a chance to raise objections and will not enforce subpoenas that are clearly invalid or abusive.

Resisting Inspector General Subpoenas

Recipients who want to resist an IG subpoena should get legal advice early on. Possible strategies include:

• Negotiating with the IG to modify or narrow the subpoena’s scope.
• Withholding documents based on claims of relevance, breadth, or privilege.
• Filing a motion to quash to have the subpoena thrown out or limited.
• Raising strong objections when the IG seeks a court order to enforce the subpoena.

Outright ignoring an IG subpoena without justification is not recommended, as it can lead to contempt sanctions if enforced.

Inspector General Subpoenas in Practice

To understand how IGs use subpoena power in practice, it helps to look at some real-world examples:

SEC Inspector General Subpoenas

The IG for the Securities and Exchange Commission makes extensive use of subpoena power in investigating securities fraud. A recent report shows the SEC IG issued over 200 subpoenas in just six months while investigating Ponzi schemes, insider trading, and accounting fraud.

NASA Inspector General Subpoenas

In 2014, the NASA IG issued subpoenas as part of an investigation into unauthorized access of government computers. One contractor challenged the subpoena in federal court but lost the motion to quash, highlighting the broad enforcement powers of IG subpoenas.

VA Inspector General Subpoenas

The VA Inspector General made headlines in 2020 by issuing a subpoena to compel testimony from a former official as part of an investigation into alleged improper hiring practices. It shows how IG subpoenas can be used to compel cooperation even from reluctant or uncooperative witnesses.

Policy Issues and Oversight of Inspector General Subpoena Power

The broad subpoena powers of IGs have raised some policy issues and concerns:

• Critics argue the subpoena power lacks sufficient checks and oversight, allowing IGs to abuse it.
• However, IGs counter that subpoenas undergo judicial review during enforcement, preventing abuse.
• Some want to require IGs to get agency head or DOJ approval for subpoenas, but IGs resist this as undermining their independence.
• There are concerns that IG subpoenas are not consistently reported and tracked, hampering oversight.
• IGs have pushed back against some legislative proposals to curb their subpoena authority.

While IG subpoena power plays a crucial role in oversight, policymakers continue to debate reforms to improve accountability and prevent misuse without undermining IG independence and effectiveness.

Conclusion

Inspector general subpoena power enables critical oversight investigations of federal agencies. However, this formidable power must be properly checked to avoid potential abuse. Understanding the source, limits, and processes for federal IG subpoenas can help agencies and individuals navigate requests responsibly and effectively.

With some informed cooperation and good faith efforts, agencies can work with IGs to provide necessary information for oversight, while protecting against disclosure of privileged or irrelevant material. On the other hand, evasion or outright resistance to IG subpoenas will likely fail and only lead to delays and court battles. Communication, transparency, and responsibility on both sides are key to balancing oversight with fairness.