Can You Ignore a Subpoena?

By: John Donovan  | 
January 6 Committee
A video of former President Donald Trump is played during a hearing by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. The committee voted Oct. 13, 2022, to issue a subpoena for Trump to testify before Congress for his role in the attack. Alex Wong/Getty Images

If some local magistrate, attorney general — or, say, the United States Congress — ever lays a subpoena on you, the best thing to do, probably the easiest thing to do, is just to show up and save yourself all the headaches.

You could ignore the subpoena, of course; it happens, more than you might expect. If you choose that route, though, get ready for a world of legal hurt involving lawyers, lots of wasted time, possible fines and, maybe, some jail time.

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Neither option is great. That comes with subpoenas.

"You're legally bound to show up," Anthony Madonna, Ph.D., a professor of political science at the University of Georgia told us when we talked to him in 2019. "The problem with that has always been enforcement."

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What Is a Subpoena?

Simply, subpoenas are documents that allow attorneys (or Congresspeople) to gather useful information. That info is used in court proceedings or in Congressional investigations. Subpoenas, generally, are the same whether they're issued by Congress or some other governmental entity. From FindLaw:

There are two types of subpoenas. The first, called subpoena ad testificandum (pronounced "ad test- te-fi-kan-dum"), requires you to testify before a court or other legal authority. The second, called subpoena duces tecum (pronounced "doo-seez tee-kum"), requires you to produce documents, materials or other tangible evidence.

In most cases, an attorney usually requests a subpoena, and somebody like a justice of the peace, a clerk — even a notary public — signs off on it. Then, it's usually served, in person, to the one being subpoenaed.

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In the case of a Congressional subpoena, it's issued by a committee, often performing a duty known as Congressional oversight to probe possible wrongdoing in the government.

Congress famously issued subpoenas to get to the bottom of the Teapot Dome scandal in the 1920s and during Watergate in the 1970s. The Republican-backed Benghazi report in 2016 used subpoenas to investigate, as did the Democrat-fueled inquiries into the former administration of Donald Trump, his finances and any possible connections to Russian interference in the 2016 presidential election.

The U.S. House Select Committee to Investigate the Jan. 6 Attack on the United States Capitol has issued numerous subpoenas, including subpoenas for former White House Counsel Pat Cipollone, Republican Representatives Kevin McCarthy, Scott Perry, Jim Jordan, Andy Biggs and Mo Brooks, Kimberly Guilfoyle and former White House trade adviser Peter Navarro.

And nobody is off limits. The House Select Committee voted 9-0 Oct. 13, in favor of issuing a subpoena for former president Donald Trump to compel his testimony regarding the Capitol insurrection.

"He must be accountable. He is required to answer for his actions," the panel's Democratic chairman, Representative Bennie Thompson, said during the Oct. 13 hearing. "He is required to answer for those police officers who put their lives and bodies on the line to defend our democracy."

Many presidents in history have been subpoenaed by Congress, including John Tyler, John Quincy Adams and Harry Truman, whose subpoenas all came after they left office. Truman refused to testify, though Tyler and Adams did cooperate.

Congress subpoenaed Richard Nixon while he was still in office, twice during the Watergate scandal. The Senate panel investigating the Watergate break-in subpoenaed Nixon in 1974 for tapes and records, but he refused. However Nixon did turn over some documents subpoenaed by House Judiciary Committee investigating Watergate.

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Can You Ignore the Congressional Subpoena?

Steve Bannon
Former Trump Administration White House adviser Steve Bannon was convicted of two counts of contempt of Congress after refusing to comply with a subpoena from the House Select Committee investigating the Jan. 6 attack on the U.S. Capitol. Drew Angerer/Getty Images

Congress, if you hadn't noticed, is a political body that often acts like it. Interacting with it often means dodging a lot of political potholes. It's issued a lot of subpoenas — more than 100 by the House Select Committee Investigating the Jan. 6 Attack on the U.S. Capitol, and several of those have gone ignored. Among some of the most publicized are former Trump adviser Steve Bannon and former White House Chief of Staff Mark Meadows.

Bannon was found guilty by a jury July 22, 2022, of two counts of contempt of Congress for refusing to appear for a deposition and for refusing to produce documents. Prosecutors want Bannon to serve six months in prison and pay $200,000 in fines. His sentencing is Friday, Oct. 21. However, the Department of Justice did not indict Meadows.

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Other high-ranking officials who've ignored Congressional subpoenas in the last decade include former attorney general Eric Holder (see Now That's Interesting) and former White House counsel Harriet Miers (in 2008). Neither were indicted.

So will Trump comply with his and what happens if he doesn't? Nobody is really sure, but it seems highly unlikely. Here's why: Shortly after the committee voted, Trump responded with a 14-page letter defending his actions Jan. 6. He also has a history of trying to dodge subpoenas, including those from New York Attorney General Letitia James, who was investigating the Trump Organization. He did finally testify in that deposition, but invoked his Fifth Amendment right against self-incrimination 450 times.

So again, if faced with a subpoena (even if you're Donald Trump) going to court is hardly enticing. But sometimes, ignoring a subpoena and taking your legal lumps seems like the safer bet. Spoiler: It probably isn't.

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What Happens If You Bolt on a Subpoena?

The courts and Congress, have ways of enforcing subpoenas. They're not always effective. They often take time. But they have their ways. If you ignore or defy a subpoena, the court that demanded your presence can find you in contempt. A fine or jail time is possible.

In the case of defying a Congressional subpoena, the committee that issued to subpoena votes to issue a contempt citation, and then the full chamber votes on it. If it passes, Congress has three ways to prosecute contempt charges, according to the Congressional Research Service (CRS):

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  1. "[A] single house of Congress [may] certify a contempt citation to the executive branch for the criminal prosecution of an individual who has willfully refused to comply with a committee subpoena. Once the contempt citation is received, any prosecution lies within the control of the executive branch." That means that the Justice Department (a part of the executive branch) can decide whether to bring a criminal prosecution. Often, citing executive privilege or other protections, Justice simply declines to prosecute.
  2. "Congress may try to enforce a subpoena by seeking a civil judgment declaring that the recipient is legally obligated to comply. This process of civil enforcement relies on the help of the courts to enforce congressional demands." Congress, in this case, would file a civil suit against the subpoena-stiffer. "The civil lawsuit route has its own problems. It moves really slowly," Madonna said. "The civil lawsuit is used sort of as a leverage. They're negotiating with the executive branch and usually get whatever it is they're looking for through that."
  3. The third type of enforcement is "inherent contempt power," a rarely used and mostly outdated method. A chamber of Congress can actually have the subpoenaed would-be witness jailed for refusing to cooperate. "The inherent contempt power is a constitutionally based authority given to each house to unilaterally arrest and detain an individual found to be 'obstruct the performance of the duties of the legislature.'" It was last used in 1935.

If Trump defies Congress' subpoena, the committee likely wouldn't have time to pursue a civil judgment. "We well recognize the fact that because of the Committee only being able to exist to the end of this congressional year, because that was the mandate, we're at a bit of a time limit here," Rep. Adam Kinzinger told George Stephanopoulos on "This Week with George Stephanopoulos Oct. 16, 2022.

The more likely option would be to refer the case to the Department of Justice for criminal contempt of Congress charges as it did with Bannon, Meadows, Navarro and Dan Scavino.

But even then, Trump likely won't face tough consequences. If you defy a Congressional subpoena and are found guilty of contempt, it's a misdemeanor, "punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months."

The penalties for ignoring non-Congressional subpoenas vary with jurisdiction, and are at the discretion of the presiding judge.

Whether it's bucking Congress or your local magistrate, ignoring a subpoena clearly is a gamble. If the paperwork and hours in court don't get you, the fine and/or jail time might. And in the end, it's hard to predict what will happen. If there is an end.

"One of the lines I always like to tell my students is, 'Rules matter until they don't,'" Madonna said. "At the end of the day, rules matter until somebody decides we're going to stop enforcing them or we're going to enforce them a different way. That's scarily or sadly always the case."

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Originally Published: May 30, 2019

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