Understanding Sovereign Immunity from Federal Subpoenas

Understanding Sovereign Immunity from Federal Subpoenas

Sovereign immunity is a legal doctrine that prevents the government from being sued without its consent. This means the federal government, states, and state officials generally cannot be sued unless they agree to it. Sovereign immunity comes from English common law and has been part of U.S. law since the country’s founding.

In recent years, some states have tried to expand sovereign immunity to block federal subpoenas against state officials who are not defendants in a lawsuit. This has raised complicated legal questions about the scope of sovereign immunity and whether it applies to discovery requests in federal court.

What is Sovereign Immunity?

Sovereign immunity means the government can’t be sued without agreeing to it. The basic idea is that the government can’t function if it’s constantly defending lawsuits. This doctrine comes from English law, which claimed “the king can do no wrong” and thus couldn’t be sued without royal consent.

In the U.S., sovereign immunity is not absolute. The federal government has waived immunity for some types of lawsuits, like civil rights claims. Congress can specifically authorize lawsuits against the government. Additionally, local governments don’t have sovereign immunity under federal law.

State Sovereign Immunity

State governments do have sovereign immunity under the 11th Amendment to the Constitution. This means states can’t be sued in federal court without their consent. There are exceptions – for example, states can be sued by the federal government or other states.

Sovereign immunity also applies to state agencies and officials – so they can’t be sued for damages unless the state agrees. However, state officials can be sued for injunctive relief to stop ongoing violations of federal law.

Sovereign Immunity and Federal Subpoenas

Federal courts have power to issue subpoenas ordering people to provide documents or testify in a lawsuit. Generally, sovereign immunity only protects states from being named as defendants – not from being subpoenaed as a third party.

For example, in U.S. v. Nixon (1974), the Supreme Court ruled that President Nixon had to comply with a subpoena for Oval Office recordings. The court stated “neither the doctrine of separation of powers, nor the generalized need for confidentiality” provided a basis for withholding evidence.

Similarly, in Clinton v. Jones (1997), the Supreme Court held that sitting presidents can be sued for conduct that occurred before they took office. The court rejected claims of temporary presidential immunity from civil lawsuits.

Based on these rulings, sovereign immunity does not automatically exempt government officials from subpoenas or civil lawsuits regarding their personal conduct.

State Efforts to Block Federal Subpoenas

In recent years, some states have tried to expand sovereign immunity to block federal subpoenas against state officials. For example:

• In a Texas redistricting case, state judges claimed sovereign immunity from federal subpoenas about their communications with state legislators. A district court rejected this, but the 5th Circuit Court of Appeals disagreed and quashed the subpoenas.
• Kansas has claimed Secretary of State Kris Kobach has “absolute immunity” from a subpoena about his role in drafting immigration laws.
• Michigan asserted immunity to shield state officials from testifying in the Flint water crisis lawsuits.

These attempted expansions of sovereign immunity aim to block federal subpoenas against state officials who aren’t even defendants in the case. The states argue that subjecting officials to discovery is an affront to their sovereignty.

Can States Claim Sovereign Immunity from Third-Party Subpoenas?

There is no definitive answer yet on whether sovereign immunity applies to federal subpoenas against state officials. The Supreme Court has not directly addressed this issue. Lower courts have come to different conclusions about the scope of immunity here.

Opponents of quashing subpoenas argue:

• Sovereign immunity only protects states from being sued directly, not from discovery requests.
• Providing testimony or documents does not violate states’ sovereignty or autonomy.
• Letting states block discovery would undermine the truth-seeking purpose of litigation.

On the other side, states argue:

• Being forced to comply with federal subpoenas infringes on states’ sovereignty.
• Discovery can distract officials from their duties and impose financial burdens.
• Federalism principles require limiting demands on state governments.

This remains an evolving area of the law. Some courts have recognized a privilege against federal subpoenas, while others see no immunity for state officials here.

Policy Considerations in This Debate

There are important policy issues on both sides of this sovereign immunity debate:

Arguments Against Immunity for State Officials

• Undermines truth-seeking. Exempting officials from discovery deprives plaintiffs of evidence and undermines the fact-finding process.
• Hinders accountability. People need access to evidence of government misconduct. Blocking subpoenas makes it harder to hold officials accountable.
• Unequal treatment. Private citizens have to comply with subpoenas. Allowing states to ignore them provides unfair protection.

Arguments for Recognizing Immunity

• Preserves state autonomy. Forcing states into federal court to defend subpoenas interferes with their sovereignty.
• Avoids undue burdens. Complying with discovery is costly and time-consuming. Officials shouldn’t be distracted by fishing expeditions.
• Maintains comity. Exempting non-defendant officials from discovery shows respect between the federal and state court systems.

Conclusion

The scope of sovereign immunity remains controversial when states assert it to avoid federal subpoenas. This pits principles of transparent government and robust discovery against notions of federalism and state autonomy. There are good-faith arguments on both sides of this complex issue, which will likely continue to develop in the courts.

For now, parties should be aware that state officials may attempt to claim immunity from federal subpoenas – and prepare arguments why discovery should or should not be permitted. As with many areas of the law, there are no easy answers here. The unique circumstances of each case will impact whether sovereign immunity applies to block federal subpoenas against state governments.