Can You Ignore a Subpoena?


Don McGahn ignore subpoena Don McGahn ignore subpoena
Former White House Counsel Don McGahn ignored a Congressional subpoena to testify before the House Judiciary Committee on May 21, 2019 on Capitol Hill, after President Donald Trump directed hime not to comply with the subpoena. Alex Wong/Getty Images

If some local magistrate — 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 in court — or, say, on Capitol Hill — 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.

Neither option is great. That comes with subpoenas.

"[Y]ou're legally bound to show up," Anthony Madonna, a professor of political science at the University of Georgia, says. "The problem with that has always been enforcement."

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.

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. More recently, the Republican-backed Benghazi report in 2016 is a prime example of the use of subpoenas to investigate, as are the Democrat-fueled inquiries into the administration of Donald Trump, his finances and any possible connections to Russian interference in the 2016 presidential election.

Why Would Anyone Ignore a Subpoena?

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. Among the most publicized of those who have defied a Congressional subpoena in recent years are former attorney general Eric Holder (in 2012, see Now That's Interesting, below) and former White House counsel Harriet Miers (in 2008).

In early 2019, Democrats leading the House Judiciary Committee subpoenaed White House counsel Don McGahn to testify in regards to special counsel Robert Mueller's report on Russian interference in the 2016 election. Trump ordered McGahn to ignore the subpoena, citing a "testimonial immunity" for senior advisers to the president. Trump famously called the Mueller inquiry a "witch hunt" and blamed "angry Democrats."

For those faced with a subpoena of the non-Congressional variety, going to court — perhaps facing people you don't want to see (a soon-to-be-ex in a divorce case, a driver who plowed into you, your former boss) — is hardly enticing. Sometimes, ignoring a subpoena and taking your legal lumps seems like the safer bet.

Spoiler: It probably isn't.

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):

  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 says. "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."

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. From the CRS:

  1. The inherent contempt power is a constitutionally based authority given to each house to unilaterally arrest and detain an individual found to be 'obstruct[ing] the performance of the duties of the legislature.'" It was last used in 1935.

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 says. "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."