Selects: What's the Deal With Subpoenas?  ## Metadata - Author: [[Stuff You Should Know]] - Full Title: Selects: What's the Deal With Subpoenas? - Category: #podcasts - URL: https://share.snipd.com/episode/c07207fc-cb0a-491c-a4fb-e6e379d02048 ## Document Notes ## Highlights - **You Can't Easily Avoid Being Served** - Proper service rules make pretending you never got a subpoena ineffective. - Certified mail or newspaper posting can legally count as service and force a response. Transcript: Josh Clark And if you do, you probably shouldn't ignore it. Charles \\Chuck\\ Bryant Yeah, I mean, it says here in this article, which most of this is from the HowStuffWorks article about subpoenas, but it says, you know, it's a lot easier if you just go or produce the documents. But as we'll cover here in a lot of this congressional oversight stuff, that is not the route that people take generally in government. Josh Clark Yeah, and I thought it was kind of an oversight to not say like, but also if somebody serves you with a subpoena, like go, you don't necessarily have to hire a lawyer, but at least consult With one. Like get some legal advice. Say, this is what I got. You know, what should I do with this? ([Time 0:12:50](https://share.snipd.com/snip/23cb71bc-5a13-4b1d-bd07-5d7c5ee25d42)) - **Get Legal Help Before Responding** - If you receive a subpoena, consult a lawyer before acting. - A lawyer can narrow overly broad requests and negotiate safer compliance. Transcript: Josh Clark Have to hire a lawyer, but at least consult with one. Like get some legal advice. Say, this is what I got. You know, what should I do with this? Is this, you know, there's a lot of questions that you should have answered before you just act on a subpoena. Charles \\Chuck\\ Bryant Yeah. And, you know, when it comes to ignoring subpoenas, and that's what a lot of this will be about is, is what's going on with our government right now and previously and what happens if you Defy Congress and is there any accountability for that? Or can you just sit on your hands, say nope? But there have been some very famous cases ([Time 0:13:20](https://share.snipd.com/snip/f89e027d-aa40-435e-b4ab-fdf20eb464f8)) - **Eric Holder And The Fast And Furious Standoff** - Eric Holder was held in contempt of Congress for ignoring a subpoena during the Fast and Furious probe. - A judge later ruled he lacked the right to defy Congress, but the matter became moot after political change. Transcript: Charles \\Chuck\\ Bryant Starting – well, not starting with, but we can start with Eric Holder, attorney general for Barack Obama. Josh Clark Yeah, that was a big one. Charles \\Chuck\\ Bryant That was part of the Operation The Fast and Furious scandal. Scandal? Josh Clark Yeah, it was definitely a scandal. From what I remember, it involved, like, secret gun sales or some guns were, like, let out into the community to be traced to see who they went to, and one of them ended up being used to murder An ICE officer, I believe. Charles \\Chuck\\ Bryant Well, Attorney General Eric Holder refused under direction of Obama to answer that subpoena, and he became the first sitting cabinet member to be voted in contempt of Congress. Josh Clark Oh, is that right? Charles \\Chuck\\ Bryant Yeah, and, you know, you're like, oh, what happens then? Well, three and a half years later, a judge ruled that he did not have the right to defy Congress. And by that time, there was a new Congress and it was a moot point. ([Time 0:14:02](https://share.snipd.com/snip/bb61690c-18f3-428d-b4c2-5f841d203d80)) - **Negotiate Subpoena Scope Proactively** - Push back on subpoenas through negotiation rather than automatic defiance. - Ask counsel to limit scope, narrow document requests, or propose alternatives to satisfy investigators. Transcript: Josh Clark When you get them, a lot of people don't realize they're negotiable. Yeah. That's one really big reason to hire a lawyer is because it may be overly broad. It may be kind of a fishing expedition. It may put you at risk to come forward and give this testimony or to hand over these documents. And if you'll, if you hire a lawyer and say, Hey, these are the things I'm worried about, they can go and argue to the judge, like, Hey, how about we just limit this subpoena to these documents Rather than everything on my client's hard drive, or it's really a big hardship for my client to make it here. Um, and the $15 a day that the court's paying him for coming to testify isn't actually going to cover it. So, you know, can we negotiate a higher fee or something like that? There's a lot of stuff that can be done. But this is a tactic that's also used with congressional subpoenas too, where say like the executive branch will go, I think that this is a little overly broad, but maybe we could give You this document. Will that satisfy you? And then they go, nope. Sometimes they say yes, though. And part of that negotiation comes out of this subpoena process. It's a response to it. ([Time 0:21:29](https://share.snipd.com/snip/6a5523d0-c3d7-4b7f-943e-47fe6e80011c)) - **Contempt As Political Leverage** - Congressional contempt remedies are slow and often used as leverage rather than immediate punishment. - Delays frequently let targets ride out the congressional session and avoid consequences. Transcript: Charles \\Chuck\\ Bryant Yeah. So technically, if you defy Congress, the committee that issued that subpoena is going to vote to issue a citation, a contempt citation. And then it's got to go to the full chamber to vote on it. And if that goes through and it passes, which it has before, then there are three basic ways that you can prosecute that charge. Right. Josh Clark And each one is... Worthless? Yeah, pretty much. Like this is, we would never give official legal advice, first of all, because we're not lawyers or even trained as lawyers. But from what I can tell, there's just nothing happens to you if you ignore a congressional subpoena. But most people respond to it because I feel like the further down the food chain you are, the more likely Congress is to do something in retaliation to you. ([Time 0:23:34](https://share.snipd.com/snip/c993f15d-30ed-44fa-95d1-3d471ff77048)) - **Contempt Enforcement Depends On DOJ** - Contempt of Congress often relies on the Justice Department to prosecute. - The DOJ frequently declines when the executive branch is involved, limiting enforcement. Transcript: Charles \\Chuck\\ Bryant Citation. And then it's got to go to the full chamber to vote on it. And if that goes through and it passes, which it has before, then there are three basic ways that you can prosecute that charge. Right. Josh Clark And each one is... Worthless? Yeah, pretty much. Like this is, we would never give official legal advice, first of all, because we're not lawyers or even trained as lawyers. But from what I can tell, there's just nothing happens to you if you ignore a congressional subpoena. But most people respond to it because I feel like the further down the food chain you are, the more likely Congress is to do something in retaliation to you. Charles \\Chuck\\ Bryant Yeah, well, let's go through the three at least. Fine. If for no other reason than pure folly. So if they vote and that contempt citation goes through, it is then under the control of the executive branch. And you think, oh, great, the president or, oh, great, the president. It's really neither. It's the Justice Department, which is part of the executive branch. It's up to them to decide whether or not they're going to prosecute criminally, and they're going to say no. They're going to say, and ([Time 0:23:42](https://share.snipd.com/snip/10b72132-9a48-4120-a193-c3425ac86b5a)) - **Early Cases Shield Presidents** - Early court decisions set presidential noncompliance precedents. - U.S. v. Cooper (1800) established that presidents are generally not subpoenaed in ordinary cases. Transcript: Josh Clark Yes, finally. We got all that boring stuff out of the way. Charles \\Chuck\\ Bryant Yeah, this first one is kind of interesting. And the way the judiciary works in this country is just super fascinating to me. The older I get, the more I read about it. I'm not becoming a legal wonk by any means. Josh Clark Illegalegal? Charles \\Chuck\\ Bryant But I get it. Like, you know, I get it that people are super into this kind of thing. Josh Clark I hadn't realized you'd gotten into the judiciary. Yeah, I think it's pretty fascinating. What got you into it? Just like news, following the news or something? Charles \\Chuck\\ Bryant Yeah, and just sort of reading about a case, like in this case, from 1800, and then, you know, precedent and what that means. Right. And when it shouldn't matter and should matter. Josh Clark Like the one from 1800 you're talking about is U.S. V. Cooper? Charles \\Chuck\\ Bryant Yeah, Thomas Cooper, who was a scientist and an attorney and a thorn in the side of President John Adams. ([Time 0:28:31](https://share.snipd.com/snip/c3af094d-c12f-4e76-ab29-52ddbcab9f7b)) - **Nixon's Tapes And Judicial Override** - Nixon claimed executive privilege to withhold Oval Office tapes during Watergate. - The Supreme Court unanimously ordered the tapes turned over in United States v. Nixon (1974). Transcript: Charles \\Chuck\\ Bryant Yeah. So everyone, we should do a full episode on Watergate. I think I've said that before. I agree. But everyone knows what happened there. President Nixon was involved in some hinky activities. And congressional committees, there was one special prosecutor in particular named Archibald Cox, who said, wait a minute. You've got these secret tapes. You've been taping people in the Oval Office. Turn them over. Here's a subpoena. We demand that you turn that over along with some other stuff. And Nixon said, you demand? And we want you to come here and testify as well. And of course, Nixon was like, I don't think that stuff's going to happen. Here you go. Here are some of these tapes. Just ignore all the parts where it seems like it was heavily edited and sounds real funny because someone who was just in the room is no longer in the room and there are non sequiturs all Over the place. Josh Clark It's like that videotape of the guy who got the high score in Donkey Kong. Right. Yeah. You know what I mean? Charles \\Chuck\\ Bryant But executive privilege was what he claimed he was protected by. This went to the Supreme Court in 1974 with United States v. Nixon. And Chief Justice Berger's opinion cited everything from Justice Marshall's Marbury v. Madison to the one we just talked about, United States v. Burr. And basically, they're walking a fine line there with the judiciary because they're saying, listen, the president needs to be confidential and protected when executing these duties, These constitutional duties on the one hand. But on the other hand, due process of law is an important thing, and that's what we're in charge of. So they kind of ended up wanting to protect each of the branch's needs, it seems like. Josh Clark Yeah, and I think they did a very good job. And the fact that it was unanimous, I think Rehnquist was involved with some of the people involved, so he recused himself from voting, but it was unanimous, 8-0 vote, saying, nope, You've got to hand the tapes over, we don't think that you're just trying to protect like intelligence secrets or military secrets or diplomatic secrets. We think you're just basically using the cover of executive privilege to cover your own behind. And that does not supersede due process in a court of law, which is going on over here with, you know, the trials of these guys who broke into the Watergate. So you got to hand over the tapes. ([Time 0:36:02](https://share.snipd.com/snip/bd3c9095-0c66-45ab-8fd6-28bc093e936e)) - **Marbury Cemented Judicial Review** - Marbury v. Madison (1804) made the Supreme Court the final arbiter of constitutional disputes. - That ruling underpins judicial review in interbranch subpoena conflicts. Transcript: Josh Clark Right. Although I think the Constitution says that the Supreme Court are the ones who are supposed to be running the show when it comes to like a high enough official, a case regarding a high Enough official. Charles \\Chuck\\ Bryant Oh, yeah. All AT&T case said was you have to really try to work it out amongst yourself before it even gets to us. Josh Clark Oh, gotcha. OK. Yeah, I gotcha. I see. I see what you're saying. Yep. Yep. Charles \\Chuck\\ Bryant So good faith, of course, is broadly defined, too. Josh Clark So in Marbury versus Madison, that one basically said, hey, there's this one component here. Yes, we've established that the legislative branch, Congress, can issue subpoenas and that the executive branch can exert executive privilege and say no to some subpoenas under Some cases. But we're also going to say in US v. Nixon in 1974 that the court can say, no, your right to secrecy is overshadowed by a right to due process in most cases. But the one that really says at the center of this is the judiciary, and that the judiciary has a right to decide cases where the legislative and executive branches are in dispute, is This Marbury v. Madison case from, I think, 1804. And it was, from what I understand, a masterstroke of legal eagleness by Justice John Marshall. Charles \\Chuck\\ Bryant Yeah. So it's the long and short of that one that Secretary of State James Madison, he was trying to withhold the commission of William Marbury. Was that the case? Josh Clark Yeah, because the outgoing Adams had packed the courts with friendly judges. Right. The commissions had not all been mailed out, and Madison was withholding some. Charles \\Chuck\\ Bryant And they basically said, listen, man, you can't do this. Like, it is your job. You shall commission all the officers of the United States. It's like right there in black and white, and you lose. Josh Clark Right, so that was one part of it. But what Marshall figured out and what made this a master stroke of legal legalness is that there was something called a writ of mandamus, which basically says you have to do this, which Had been granted to the Supreme Court in the, like an act in 1789. Marshall said, so yes, Madison has to give this over. Like this is just part of his duties and he's following a law that Congress made. So he's subject to that law as a minister of the government. But at the same time, the writ of mandamus power that the Supreme Court has been given is unconstitutional. We're not in a position to issue a writ of mandamus because under the Constitution, we're not given that right. And so in doing that, he established the Supreme Court as the interpreter of what law is constitutional and what isn't. Right. And he did that by saying this law that gives us this amazing power is unconstitutional. So he did it by taking power away from the Supreme Court. ([Time 0:39:13](https://share.snipd.com/snip/8a73f0e0-3855-49e6-baa3-443cea019039)) - **An Unresolved Constitutional Brink** - If the executive branch truly refuses a Supreme Court order, constitutional remedies are untested. - That unresolved brinkmanship defines current subpoena conflicts and democratic risk. Transcript: Josh Clark President and the Ukrainian president. And the executive branch still says no. And that is the point that everyone says, we have no idea what happens then. We have no idea. Do you go arrest these, you know, the Secretary of the Treasury? Do you go arrest these cabinet members? This has never been done before. Like, what remedy do you really have? And that's where we are with testing out this unitary executive theory. How far can you kick the kind of unwritten rules of the Constitution? Well, there's lots of written rules of the Constitution, but also like the unwritten rules and procedures that kind of have guided all of this for so long. What happens when those things just stop being recognized as valid? What do you do? Well, I don't know. ([Time 0:49:08](https://share.snipd.com/snip/a54144de-7b85-4bb8-97eb-0762651941f1)) - **Modern Push For Unitary Executive Power** - Recent White House legal opinions push a maximal executive-immunity stance. - They argue courts can't enforce congressional subpoenas when the executive declines, raising constitutional uncertainty. Transcript: Josh Clark And in particular, Trump's latest, Trump's legal counsel's latest position, which I think came out in September of this year, it's a doozy. It basically takes, and here's something we need to remember here. Like, this is not brand new with Donald Trump, right? Like, if you can't stand Donald Trump, this is his White House, his administration is building on stuff that previous presidents have built on, both Democrats and Republicans alike. There has been a real push basically since Nixon to instill as much power into the presidency and the executive branch as possible. And this is an extreme version of that, but it's still kind of following the same path. But what they're doing is more aggressive than what previous administrations have done. And they're basically saying this. If you subpoena us, the executive branch, if you, the Congress, subpoena one of our people, any of our people for any reason whatsoever, the president can say, no, do not respond to that Subpoena. Do not go before Congress. Do not hand over those documents. I'm the president. I'm ordering you to. Congress can issue a writ of contempt or find the person in contempt, but that's it. That's where it ends because the president can say, well, this is an interbranch dispute between the legislative branch and the executive branch. And because the judiciary can't be drafted or shouldn't be drafted in to solve these disputes, that's all that will remain is an interbranch dispute. And the Supreme Court really has no purview in deciding these cases. Yeah. And when you have that, then that means that the executive branch has been removed from the oversight of law. It becomes above the law. The law no longer applies to it. And so whatever the president wants to do, whatever the president directs his or her agencies to do is de facto legal just because the president and the executive branch are not subject To the laws of the land, including rulings by the highest court in the United States. That's what the latest argument is setting us up for. Yeah. Charles \\Chuck\\ Bryant I mean, this is what the Justice Department, there was a great article in the Washington Post by Harry Lipman called the Justice Department's outlandish and arrogant position on congressional Subpoenas. And this is from the article. It said, according to the Justice Department, there is no constitutional or statutory basis for a congressional committee to try to enforce a subpoenas in the federal courts where The executive branch has decided not to do so. Right. So basically, yeah, they said no. And so they said no. Josh Clark And all of this arose from an opinion regarding Trump's tax returns, I believe. Charles \\Chuck\\ Bryant Yeah, that's sort of where the whole thing got started. Josh Clark Yeah, where the Treasury Secretary Steven Mnuchin said, no, we're not doing that. And Congress said, well, we're holding you in contempt. And then the legal office of legal counsel from the White House issued this opinion. And I mean, it's a doozy, but it's also saying like, what are you guys going to do? What can you do? And that's, that's the, that's the big question now. ([Time 0:50:20](https://share.snipd.com/snip/fa623da1-be0e-438c-8d9a-56afd1bb6304))