WHAT DO I DO IF I GET A GOVERNMENT OR GRAND JURY SUBPOENA?

If you or someone close to you has been served with a subpoena from a government agency or a grand jury, you probably have no idea what it means, what your obligations are, what your options are for responding, whether you should be worried, and whether you should hire a lawyer.  This article will explain the basics of government and grand jury subpoenas, including key issues you should be aware of to protect and preserve your rights.

Government and grand jury subpoenas are common even though the average person has no experience with them.  There are hundreds of federal and state agencies that can use a grand jury to issue a subpoena.  These range from high-profile agencies like the FBI, to small, highly-specialized state regulatory agencies focused on specific areas like consumer protection, election finance, and environmental protection.

Failing to comply with a subpoena can have serious consequences.  But, blindly responding to a subpoena while trusting it is appropriate and that the government is mindful of protecting your rights also carries significant risks that you do not have to take on.

What is a subpoena issued by a government agency or grand jury?

A subpoena is an official document commanding the person receiving it to provide testimony or documents – or both.  If the subpoena seeks documents, it includes a description of exactly which documents the government or grand jury seeks.  Sometimes those descriptions are short and contained in a few sentences.  Other times they are extraordinarily detailed and spelled out over pages of attachments.  Subpoenas specify a date, time, and place for the person receiving the subpoena to show up and provide the documents and testimony.

Subpoenas are powerful because if a person ignores it and does not show up at the listed date, time and place — the agency or grand jury that issued it can go to a judge and seek to hold the person in contempt for failure to comply.  Sometimes the government will reach out and threaten contempt before actually going through with seeking it – but there is no guarantee you will get a second chance at responding legally.  Contempt sanctions vary widely.  They can range from fines to the issuance of an arrest warrant to compel compliance.   In short, ignoring a government or grand jury subpoena is almost never a good idea.

As a practical matter, subpoenas issued by government agencies are a little different than grand jury subpoenas.

Government Agency Subpoenas.  Government agencies issuing subpoenas are typically law enforcement and regulatory agencies tasked with investigating specific types of crimes or legal violations related to an agency’s mission (e.g., the IRS issues subpoenas in tax investigations, and consumer protection agencies issue subpoenas related to consumer fraud).  Sometimes agencies are limited in the type and scope of the subpoenas they can issue, and those limitations are spelled out in laws and regulations that you should understand before deciding on an appropriate response.  With agency subpoenas, it is more common that the person drafting the subpoena may be an investigator where attorney oversight of the contents of the subpoena may be minimal when it is first issued.  As a result, because these subpoenas have not been reviewed by a lawyer mindful of the technical requirements, agency subpoenas are more prone to having technical deficiencies and shortcomings that a defense attorney can identity and use to fight or narrow the subpoena.

Grand Jury Subpoenas.  Grand juries, on the other hand, are central to the federal criminal process of investigating and charging crimes.  They are also important in some state criminal processes, though in California criminal grand jury investigations are less routine than in the federal system.  A grand jury is a group of citizens selected just as trial juries are selected: at random and drawn from the community where they meet.  The grand jury meets in secret, typically a few times a month for an extended period, and has the authority to (i) investigate crimes by issuing subpoenas and compelling the production of documents and testimony under oath, and (ii) issue indictments charging felony crimes.

The original idea behind grand juries was both (i) to enable effective investigations, and (ii) to operate as a “check and balance” on (i.e., neutral evaluation of) a prosecutor’s desire to bring felony charges.  The first goal has been met in practice, but the second has not.  The grand jury was designed to be a group of impartial citizens that independently reviews the evidence to decide for itself whether probable cause supports a felony charge — regardless of what a prosecutor thinks or wants.  In practice, that is not how grand juries work.

Through no fault of the grand jurors, they almost always see and hear only what a prosecutor chooses to present,  and therefore rarely disagree with a prosecutor’s recommendation to bring charges.  Prosecutors are generally careful to present evidence that will support a recommended charge.  The grand jury itself almost never discusses what investigations it is interested in conducting or additional steps to take in a particular investigation.  Rather, prosecutors issue the subpoenas on behalf of the grand jury, the grand jurors review what comes back, and then the prosecutor asks the grand jury to vote on an indictment based on a limited set of evidence selected by the prosecutor that was presented to the grand jury.

This dynamic results in two key takeaways.  First, grand juries have little practical utility in serving as a check and balance on prosecutors’ charging decisions.  Second, and more relevant to someone who has just received a subpoena — a federal grand jury subpoena is typically a document that has been reviewed and approved by a federal prosecutor who is supervising a criminal investigation by a federal law enforcement agency, and the federal prosecutor is collecting evidence in support of a potential federal criminal charge.  As a result of that lawyer oversight, these subpoenas tend to be – though are not always — more detailed and likely to be free of technical deficiencies that more often pop up with agency subpoenas.

What happens when I am served with a government or grand jury subpoena?

Although subpoenas carry the threat of punishment by a judge if ignored without a good reason, the subpoenas themselves are first issued without a judge’s approval.  This is a critical point.  A subpoena is not a warrant.  Warrants must be approved by judges ahead of time.  Thus, a subpoena itself does not empower a government agent to enter your home or to conduct a search.  Without a warrant, an agent cannot do these things without your consent. You have no legal obligation to consent to a search or to answer any questions after being served with a subpoena.

However, agents serving subpoenas typically attempt to question the person after handing over the subpoena – and sometimes will go further by seeking consent to conduct searches.  Thus, being served with a subpoena can feel the same as being served with a warrant – but it is not the same thing.

You should immediately consult an attorney before deciding whether to answer questions or consent to any search after being handed a subpoena.  Frankly, insisting on talking to a lawyer is hard to do in the moment after an official with a badge and a gun hands you a document with an court seal and tells you that it’s an important legal document requiring your compliance.  Agents are well-trained interrogators who are skilled at various techniques in getting people to agree to answer questions even after someone first expresses uncertainty whether they should talk.

For example, agents do not need to first ask you if you are willing to answer questions if you are not under arrest.  Thus, often they will start asking minor, mostly irrelevant questions to get you talking before transitioning to what they are actually interested in, relying in part of social norms where it seems rude to stop answering and talking.  In reality, it is not rude, confrontational, uncooperative to preserve your rights – and you do not have to be rude or disrespectful to avoid compromising your position.  A good formula for responding to these on-the-spot questions is to – as early as possible in the conversation — acknowledge the authority of the agent while politely insisting on speaking to a lawyer.  “Agent Jones, I know it’s a big deal to have an FBI agent like you show up and give me a subpoena, and I just don’t know how to deal with it without talking to lawyer.  I’m going to need to talk to one before I answer any of your questions.”  In response to additional questions, just keep politely repeating the need to talk to a lawyer before answering based on uncertainty.

Why am I being served with a subpoena?

As explained above, subpoenas are issued to further an investigation.  Sometimes the investigation is by a regulatory agency that ultimately only has the power to issue fines.  Other times, as with federal grand jury subpoenas, the investigation is a criminal investigation involving felony charges that can carry massive potential consequences, including significant prison time.  Understanding who issued the subpoena and the nature of the investigation is critical.  Attorneys experienced in responding to government and grand jury subpoenas can evaluate the face of a subpoena and learn a fair amount about the nature of the investigation and therefore certain risks associated with being part of that investigation.

After understanding who issued the subpoena and what the investigation is likely about, the next critical question is whether the investigators who issued the subpoena think you did something wrong.  In other words: did they give me this subpoena because they are going after me?  There is a lingo specific to federal grand jury subpoenas, which is often adopted by other federal and state agencies, addressing this topic.  That lingo divides people (and companies) who receive subpoenas into three different groups: targets, subjects, and witnesses.

These labels are fairly intuitive.  The U.S. DOJ’s definitions are helpful to understand the basics, though they may not be adopted or used by all agencies issuing subpoenas.  A  “target” is “a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”  Justice Manual § 9-11.151.  A “subject” is “is a person whose conduct is within the scope of the grand jury’s investigation.” A mere “witness” is, essentially – everyone else,  Typically, “witnesses” are people that the government has no reason at all to believe may have done something wrong.  These are generally individuals and companies who happen to possess information relevant to an investigation but who were clearly not responsible in any way for any suspected violation.  Examples of “witnesses” include victims, eyewitnesses, and people who have relevant records despite having no responsibility for the conduct in question (e.g., a low-level assistant with access to financial records that may document financial crimes committed by other people).

The subpoena will not specify whether you are a target, subject or witness.  However, federal grand jury subpoenas will generally include an “advice of rights” notifying the person receiving the subpoena of certain constitutional rights if the government believes that person is a “target” or “subject.”  Thus, if you received an “advice of rights” page with your subpoena – you are probably a target or subject.  While the distinction between being a “target” and not being a “target” is massive, the difference between being a “subject” and a “witness” is often much more subtle.  Investigators will often err on the side of calling almost all non-targets a “subject” unless it is essentially impossible the person could have any responsibility for the conduct under investigation.

If you received a subpoena, an experienced attorney may be able to have a candid conversation with investigators about your status as a target, subject, or witness.  Particularly if you are a witness, investigators may be eager to share that information because they are seeking swift cooperation and do not want someone with nothing to worry about to delay and consider objections to compliance with the subpoena.   On the other hand, those conversations between a lawyer and the government are almost always informal and not something binding on the government later in the investigation.  Experienced attorneys can help you understand the significance of the investigators’ characterizations and your practical risks going forward based on the specifics of your case.

How should I respond to the government or grand jury subpoena?

While a subpoena contains a specified date of compliance, it cannot actually be enforced without a judicial order responding to a motion by the government arguing that you failed to comply and some enforcement sanction is warranted.  If there are legitimate grounds for challenging a subpoena, an attorney can move to invalidate (or “quash”) the subpoena before the compliance date – or your lawyer can simply argue those grounds in opposition to any motion by the government seeking to enforce compliance.  Deciding between those two strategies depends on the facts of the case and an experienced lawyer can help you navigate the strategy.

In addition, in practice government and grand jury subpoenas can be narrowed by agreement between an attorney and the government.  This process involves an attorney for the person who receives the subpoena reaching out to the government and explaining concerns about the scope of the subpoena and/or previewing legal grounds that the subpoena may be invalid. Those conversations also often involve learning more details about the investigation that can help inform a person’s response to the subpoena – details which the person would never know without the assistance of an attorney.  It is not uncommon for a subpoena to be drafted by the government asking for more than the government expects it could ultimately have a court agree is proper if the issue were presented to a judge.  But without an attorney representing you and talking to the government on your behalf, you cannot take advantage of this option.

There are many potential grounds to invalidate or narrow a subpoena.  One ground that non-lawyers often ask about is whether the subpoena is simply a “fishing expedition” and the government has no reason to suspect it will reveal anything relevant.  Unfortunately, unlike with civil suits between private parties arguing over money, this argument generally faces an uphill battle.  Subpoenas are issued as part of an investigation, and courts generally believe that the nature of investigations is that the government cannot know what is relevant ahead of time.  Therefore, courts often reason, the government is entitled to poke around with subpoenas seeking even potentially relevant evidence based on a minimal showing of any connection between the investigation and the recipient of the subpoena.  Thus, showing that the government does not have solid proof the subpoena will lead to key evidence rarely convinces a Judge that the subpoena is invalid.

Instead, a subpoena can be quashed or narrowed for other reasons including that:

• It seeks legally protected materials or communications;
• It is too broad or burdensome relative to the investigation;
• There are procedural deficiencies in the subpoena itself or its service;
• The person receiving the subpoena has identified some potentially improper reason the government issued the subpoena besides a standard investigation; or
• The subpoena has absolutely no basis in reason or evidence relative to the nature of the investigation.

How can an attorney help me with a government or grand jury subpoena?

As explained above, in order to protect your legal rights, you should contact an attorney experienced in government and grand jury subpoenas immediately if you receive one.

A knowledgeable and skilled attorney can help you to:

• Assess your legal obligations in responding to a subpoena
• Assess your legal risks in responding
• Determine whether there may be grounds to quash or narrow the subpoena
• Negotiate an extended deadline for compliance
• Negotiate a reduced burden of compliance
• Prepare you to testify if necessary