I always thought that there was some legal teeth behind a subpoena - if you were served, you had to appear. But Karl Rove and Harriet Myers have been ignoring subpoenas from the US Congress for more than two years. How? Can any random citizen just ignore one at will?
Um, cite?
I guess it is up to the new administration:
I am a political naif, so the more wonkish members of the board will be amused by this unfounded idea.
Perhaps it is because the subpoena is being issued by Congress instead of a court, and is thus legalistically more of a request than a command to appear.
I am not a lawyer, but a congressional subpoena is still a legal demand to appear. Congress has the problem that it almost always has to rely on the executive branch to enforce the subpoena. While the prior administration was in office that clearly wasn’t going to happen. Now that there is a new administration in office, both people have agreed to give testimony to Congress. I don’t personally think the testimony will be very enlightening, but they will show up.
This is in principle the answer–Rove was indisputably in the wrong for ignoring the subpoenas (even if Rove was able to make a valid claim of privilege, there is a specific method to properly assert a privilege–and Rove simply refused to do what the law required.). A subpoena simply isn’t a request to show up–it’s a legal order to do so.
If you or I did what he did to any judge in the land, we’d be thrown in prison. Rove had the benefit of an Attorney General who refused to enforce a valid subpoena–and my guess is that Rove got the message that if he decided to ignore the subpoena again, a contempt prosecution would swiftly follow (as it should have the first time he chose to ignore a legal order).
The above are correct; failure to appear under order of a congressional subpoena is contempt of congress, and is criminally punishable by
$100 to $1000 fine and one to twelve months confinement. 2 U.S.C.A. § 192.
Nitpick: Courts don’t issue normal subpoenas. Attorneys do. If somebody fails to comply with a subpoena, you go get a court order for their compliance- but the subpoena itself is not enforceable and doesn’t have teeth.*
This doesn’t apply to Congressional subpoenas, which do come with penalties, as noted above… so you have it backwards.
*Except in New York state, which has funky toothed judicial subpoenas.
A congressional subpoena has not been enforced for so long that nobody knows how to do it or if it is enforceable.
It is true that attorneys issue subpoenas, but in almost every case, they do so in their role as officers of the court-and acting with the authority of the Court. They are absolutely orders of the court.
When a subpoena is ignored, courts often order the witness to comply with the subpoena before a contempt finding. This is, as I understand it, to put the witness on notice that they will be punished if they do not comply. It doesn’t alter the fact that the subpoena is an order of the court
Examples .:
Federal: http://www.wiwd.uscourts.gov/assets/pdf/AO088.PDF
-note that on the signature block, it says “Issuing Officer’s name (indicate if attorney for plaintiff or Defendant).” This is because the attorney issuing the subpoena is acting as a court officer in doing so.
See also Fed. R. Civ. P. 45(a)(3), which clearly says that court clerks must give attorneys blank subpoenas on command–(signed by the clerk of, and orders of the court)-but that an attorney can also sign them as an officer of the court. (and implicitly, that there is no distinction–each is empowered to issue a subpoena on behalf of the court).
“The clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service. An attorney also may issue and sign a subpoena as an officer of:
(A) a court in which the attorney is authorized to practice; or
(B) a court for a district where a deposition is to be taken or production is to be made, if the attorney is authorized to practice in the court where the action is pending.”
Alaska: State of Alaska
–read the first line… “A subpoena is an order of the court.” These are ordinary civil subpoenas, filled out by the attorney, and then signed by the court clerk.
Virginia: http://www.courts.state.va.us/forms/district/dc497.pdf
–note the language: “TO the person summoned… you are commanded to appear”
Also, this is wrong:
-
2 U.S.C. 192, a federal statute, makes it a crime to fail to respond to a congressional subpoena.
-
The executive (or others) may have valid privileges that protect them if properly invoked, but that doesn’t mean the subpoena is invalid. In the rove case, the problem was that the attorney general refused to prosecute. That didn’t mean it wasn’t illegal for rove to refuse to comply-just that he didn’t get prosecuted for it.
-
Here’s a detailed report on the investigative power from 1995, and a review of the enforcement of subpoenas against the executive from 2003. Congressional subpoenas have been enforced in the recent past, and are enforceable.
U.S. Senate: 404 Error Page
U.S. Senate: 404 Error Page
(none of this is, or purports to be legal advice). IANAL
Sure, but the point is not whether attorneys issue subpoenas in their capacity as officers of the court- it’s whether any punitive action attaches to ignoring one, which it doesn’t.
To make sure we’re clear–the point I’m disagreeing with is your assertion that
As I understand it, you mean that the subpoena itself means nothing in a legal sense, and may be disobeyed without consequence–only the order of the court to obey brings the risk of sanctions. (for one thing, that’s simply inconsistent with their plain language, commanding rather than requesting a witness shows up)
Further,at least technically, the order is to compel response to the subpoena-it is not a independent discovery order. So saying that the subpoena is “not enforcable” misses the point–because that is exactly what a party is doing when they move for an order to compel—they’re asking the court to enforce the subpoena.
But this brings me to my principal point. At least in the federal system, there is an interesting distinction between discovery requests and subpoenas–and you and I are talking about subpoenas.
Rule 37 controls sanctions in discovery, and 37(a)(1) does allow a party to move for an order to compel. 37(b) does note that sanctions are to result from a failure to obey an order to compel. However, those are discovery sanctions. They are different from the contempt power, which is under Rule 45(e)–referring to subpoenas. As you may note (I have pasted it below), it makes no reference to the failure to obey an order to obey the subpoena–it gives the court the power to hold a party in contempt if they “fail without adequate excuse to obey the subpoena.” That is clear on its face.
The distinction, which you brush aside, is that most discovery requests between parties are not court orders–they are requests from one party to another. See, e.g. Rule 33(a)(1).
However, subpoenas are different. As I’ve already shown they are orders of the court, made by an officer of the court. They may be in the form of a blank signed by the clerk of the court–which again, reinforces the contention that they are a court order. I don’t know what definition of contempt you’re using–but as I understand it, failure to comply with a court order is by definition contempt of court. This is why it’s important that lawyers are issuing them as officers of the court.
Of course, in an adversarial system, judges will rarely take action sua sponte-so no sanction will come unless a party asks for one. Similarly, while a judge may have the power to find failure to obey a subpoena to be contempt of court, he may not choose to do so without giving a warning in the form of an order to comply (and it may often make sense to do so), I see nothing that forbids a judge from finding mere failure to respond to a subpoena to be a contempt–and rule 45(e) seems on its face to explicitly authorize that.
So I’m sticking by my position.
(I presume this distinction between most discovery requests and subpoenas is at least echoed in most state systems–though IANAL, and I don’t have the time to look it up.)