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21 Jan 24

Understanding Federal Subpoena Power: What Can Be Compelled?

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Last Updated on: 21st January 2024, 10:46 pm

Understanding Federal Subpoena Power: What Can Be Compelled?

The federal government has broad subpoena powers to compel information and testimony as part of federal investigations and legal proceedings. However, these powers are not unlimited. There are important protections for individual rights and privileges under the law. This article provides an overview of federal subpoena power and its limits.

What is a Subpoena?

A subpoena is a written order requiring an individual or organization to provide documents, testify, or both, related to a legal investigation or proceeding. Federal agencies like the FBI, IRS, SEC, and others can issue subpoenas to further their investigations.There are two main types of federal subpoenas:

  • Subpoena duces tecum – requires the production of documents, electronically stored information, or other tangible items.
  • Subpoena ad testificandum – requires an individual to testify as a witness.

Failure to comply with a federal subpoena can result in civil or criminal contempt charges. So it’s important to understand what can be compelled under federal subpoena power.

What Can Be Compelled Under Federal Subpoena Power?

In general, federal agencies have broad authority to subpoena relevant information for federal investigations and legal proceedings. However, subpoena power is not unlimited. There are certain rights and privileges that provide protections:

Personal Records

Federal agencies generally cannot subpoena certain personal records without meeting specific constitutional requirements, like showing probable cause and getting a court order. Some examples include:

  • Content of phone calls and emails stored by service providers
  • Cell phone location information
  • Bank and financial records
  • Medical records

However, subscriber information and metadata that doesn’t reveal content can typically be obtained with a subpoena.

Journalistic Materials

There are some protections for journalists and news organizations when federal authorities seek confidential sources and unpublished journalistic materials. Prosecutors must show the information is critical, all other sources have been exhausted, and get approval from the Attorney General.

Attorney-Client Privilege

Communications between an attorney and client for the purpose of legal advice are generally privileged. This means prosecutors cannot compel their disclosure except in limited circumstances.

Limits on Federal Agencies’ Subpoena Power

While federal agencies have broad subpoena powers, there are some additional protections that limit what they can compel:

Constitutional Rights

The 4th Amendment protects against unreasonable search and seizure. So subpoenas that make overly broad or irrelevant requests may be limited by courts. The 5th Amendment also provides protections against self-incrimination.

Reasonableness

Courts require that subpoenas only compel information and testimony that is reasonably relevant and material to federal investigations. Overly broad “fishing expeditions” face greater scrutiny.

Undue Burden

If compliance with a subpoena would be unreasonably costly or time-consuming, courts may quash or modify subpoena requests.

Sensitive Information

There are statutory protections limiting access to certain types of sensitive personal information, like tax returns, without meeting specific procedural requirements.By understanding the scope and limits of federal subpoena power, individuals and organizations can better protect their rights during federal investigations while still complying with lawful requests. Those facing a federal subpoena should consult with an attorney to understand how to respond appropriately.

Resources

For more information on federal subpoena power, check out these additional resources: