There has been a lot of news lately about grand jury subpoenas. It’s not often you see a sitting President filing multiple motions seeking to prevent his accountant from producing copies of his tax records. These are certainly unusual times.
So, what exactly is a grand jury subpoena? And when can you challenge one?
To understand a what grand jury subpoena is, you must first understand what a grand jury is. A grand jury is a special type of jury that decides whether to indict defendants. In the federal system, it is governed by Federal Rule of Criminal Procedure 6. It has anywhere from 16 to 23 people on it. The grand jury listens to evidence and reviews documents–under the supervision of a federal prosecutor–and then decides whether there is probable cause that a crime was committed.
There are two key parts to grand jury proceedings.
First, they are very secret. We’ve written about grand jury secrecy here.
Second, only the prosecutor and the grand jurors hear what is happening (along with a court reporter). The defendant is not in the grand jury to defend himself, nor is a lawyer for the defendant there to offer arguments for the defendant. There is also no judge there. Generally, no one sees the transcripts of the grand jury proceedings. (One exception is if a witness in the grand jury testifies at trial. In that situation, the government gives the defendant a copy of that witness’ grand jury testimony.)
How a Grand Jury Investigates Possible Crimes
It’s a little misleading to say that a grand jury investigates crimes. The prosecutor is the driving force. No one expects a group of non-lawyers and non-agents selected randomly to understand how to investigate federal crimes.
The prosecutor uses the grand jury to accomplish two investigative acts: (1) subpoena documents, and (2) subpoena witness testimony.
We’re going to focus on the first category: grand jury subpoenas for documents. Rule 17 governs them. They are sometimes called subpoenas duces tecum (pronounced doo-kiss teekum), because lawyers love to use Latin to sound smarter than we are.
A subpoena is a demand for documents from the grand jury. It is issued by the grand jury, but the prosecutor drafts it. It looks like this:
The subpoena will ask for specific categories of documents, such as:
- All communications between Acme Company and subcontractor Beta Inc. about federal government contract no. 1234567.
- All documents related to Department of Defense federal government contract no. 1234566.
The subpoena will define a time frame for the responsive documents, such as from January 1, 2015, to December 31, 2019.
Do not ignore a subpoena. It will not go away if you try to “forget” about it or ignore it. The person or company that receives the grand jury subpoena must respond to it. It is not voluntary. Failure to respond is contempt of court. Destroying documents responsive to the subpoena could be obstruction of justice.
You can imagine that responding to a subpoena is often an expensive and time-consuming process. If you are a company and the subpoena asks for “all communications” related to a federal contract, then you have to search the emails and text messages (if possible) for all employees who had anything to do with that contract.
If you get a grand jury subpoena, you should immediately call a lawyer. You don’t know if you are under investigation (or someone else), and you need a lawyer to help you respond to the subpoena in the right way.
Can I Tell Other People About the Subpoena?
Yes! I feel strongly about this.
There are some very limited circumstances when you cannot do so, such in certain national security matters. The prosecutor will make it very clear if you are prohibited from doing so.
But prosecutors don’t like people who receive subpoenas to tell the target of the investigation about the subpoena. So, the AUSA will often include a cover letter with a subpoena that will have something like this in it:
Note that this is a “request” not to disclose the subpoena. You can disclose it as long as you aren’t doing so to impede or obstruct the investigation.
There are times when you must disclose it. For example, if you are a lawyer, and you receive a subpoena for a client’s files, then you must tell the client (and give the client a chance to object to the subpoena).
Can You Challenge a Subpoena?
Yes, you can.
If the subpoena asks you to produce privileged documents, then you can file a motion to quash (not “squash,” but “quash”). That’s a motion filed in the district court asking the court to either modify the subpoena or to quash it entirely. If the subpoena is quashed, then you do not have to respond to it.
Getting a criminal subpoena quashed is extremely difficult. The Supreme Court has explained that “[g]rand juries are not licensed to engage in arbitrary fishing expeditions, nor may they select targets of investigation out of malice or an intent to harass.” United States v. R. Enterprises, Inc., 498 U.S. 292, 299 (1991). However, a grand jury subpoena “issued through normal channels is presumed to be reasonable, and the burden of showing unreasonableness must be on the recipient who seeks to avoid compliance.” Id.
In other words, the burden is on the person trying to avoid responding (or trying to stop someone else from responding) to show that the subpoena is unreasonable.
The most common challenge is that the subpoena asks for irrelevant documents. The R Enterprises decision establishes a high bar:
[W]here . . . a subpoena is challenged on relevancy grounds, the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.
Showing that there is “no reasonable possibility” that the documents are “relevant” to the “general subject” of the grand jury’s investigation is a close-to-impossible standard to meet.
You can also challenge a subpoena if it creates an “undue burden.” That means that responding would create a serious burden on you. For example, imagine that your company worked with a government contractor, Acme, for twenty years. Acme is under investigation for bribery related to one contract that was issued in 2016. The government sends you a subpoena for every communication with Acme back to 2000. Arguably, this subpoena creates an undue burden on you to respond. It would be extremely time-consuming and very expensive to search for all of those communications.
You could also challenge a subpoena on overbreadth grounds. But that too is a tough standard as it mirrors the R Enterprises standard. As one recent Second Circuit decision explains, “a grand jury subpoena is unreasonably broad only if there is no reasonable possibility that the category of materials the government seeks will produce information relevant to the general subject of the grand jury’s investigation.” In re Grand Jury Proceeding, 971 F.3d 40, 54 (2d Cir. 2020).
Now, you may have realized that there is a disconnect between grand jury secrecy and challenging a subpoena. If you don’t know what the grand jury is investigating, how can you challenge a subpoena as being irrelevant to the investigation?
That’s a great question. Sometimes the court will require the government to disclose the scope of the grand jury investigation during a motion to quash proceeding and sometimes not.
The Decision about President Trump’s Tax Records
In the recent decision by the Second Circuit over President Trump’s tax record held by Mazars USA LLC (link here), President Trump sought to prevent Mazars from responding to the subpoena on grounds that it was overbroad and issued in bad faith. This case is unusual since it was a state court subpoena, rather than a federal court one. The case ended up in federal court because President Trump filed a civil complaint seeking to enjoin its enforcement. (Kids: Don’t try this at home.)
Every news outlet is covering this decision, so I don’t need to describe it here. TL;DR: the court found that the subpoena was not overbroad and that President Trump had not shown that its purpose was to harass him.
Well, at least the court treated the President just like everyone else.