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.
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."
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. 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.
More recently, the U.S. House Select Committee investigating the Jan. 6, 2021, attack on the United States Capitol has issued numerous subpoenas, including subpoenas for right-wing media personalities Mike Lindell and Sebastian Gorka on Jan. 5, 2022. Mark Meadows, former White House chief of staff; Ali Alexander, who is connected to permit applications for the "Stop the Steal" rally; Kashyap Patel, a former Defense Department official; and Kayleigh McEnany, a former White House press secretary, also have received subpoenas from the committee.
And nobody is off limits. Case in point: New York Attorney General Letitia James issued subpoenas Jan. 3, 2022, for former President Donald Trump himself, and two of children, Ivanka and Donald Trump Jr. The subpoenas are for all three of their testimonies in an ongoing investigation into the Trump Organization's business practices, though the Trump's lawyers immediately filed papers in court seeking to block the subpoenas.
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 some of the most publicized who have defied a Congressional subpoena in the last decade are former attorney general Eric Holder (in 2012, see Now That's Interesting, below) and former White House counsel Harriet Miers (in 2008). Neither were indicted.
But Nov. 12, 2021, former Trump adviser Steve Bannon defied a subpoena and refused to appear before the Select Committee to Investigate the Jan. 6 attack on the United States Capitol. Bannon was indicted by the Justice Department and now faces two counts of contempt of Congress: one for refusing to appear for a deposition and a second for refusing to produce documents.
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):
- " [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.
- "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."
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:
- 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 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."
Originally Published: May 30, 2019