Administrative Subpoenas in Criminal Investigations: A Brief Legal Analysis
Prepared for Members and Committees of Congress
Administrative subpoena authority is the power vested in various administrative agencies to
compel testimony or the production of documents or both in aid of the agencies’ performance of
their duties. Administrative subpoenas are not a traditional tool of criminal law investigation, but
neither are they unknown. Several statutes at least arguably authorize the use of administrative
subpoenas primarily or exclusively for use in a criminal investigation in cases involving health
care fraud, child abuse, Secret Service protection, controlled substance cases, and Inspector
As a constitutional matter, the Fourth Amendment only demands that administrative subpoenas be
reasonable, a standard that requires that 1) they satisfy the terms of the authorizing statute, 2) the
documents requested are relevant to the investigation, 3) the information sought is not already in
the government’s possession, and 4) enforcing the subpoena will not constitute an abuse of the
Although more extensive proposals were offered in the 108th Congress, the law enforcement th
related administrative subpoena proposals in the 109 Congress appear in S. 600, relating to the
Secretary of State’s responsibilities to protect U.S. foreign missions and foreign dignitaries
visiting this country; in H.R. 3726, relating to federal obscenity investigations; and in H.R. 4170,
relating to the apprehension of fugitives charged with, or convicted of, federal or state felonies.
This report is available abridged – without footnotes, appendices, and most of the citations to
authority – as CRS Report RS22407, Administrative Subpoenas in Criminal Investigations: A
Sketch, by Charles Doyle.
Introduc tion ............................................................................................................................... 1
Backgr ound ............................................................................................................................... 3
Administrative Subpoenas Generally..................................................................................4
Administrative Subpoenas and the Grand Jury...................................................................9
Criminal Administrative Subpoenas.................................................................................10
Administrative Subpoenas in Criminal Investigations......................................................15
Appendix A. 21 U.S.C. 876. Subpoenas........................................................................................20
Appendix B. 5 U.S.C. App. III, 6. Authority of Inspector General; information and
assistance from Federal agencies; unreasonable refusal; office space and equipment...............21
Appendix C. 18 U.S.C. 3486. Administrative subpoenas..............................................................24
Author Contact Information..........................................................................................................26
Administrative subpoena authority is the power vested in various administrative agencies to
compel testimony or the production of documents or both in aid of the agencies’ performance of th
their duties. During the 108 Congress, the President urged Congress to expand and reenforce
statutory authority to use administrative subpoenas in criminal and legislation was introduced for 1th2
that purpose. Modest proposals have been offered during the 109 Congress.
Proponents of the expanded use administrative subpoenas emphasize their effectiveness as an
investigative tool and question the logic of their availability in drug and health care fraud cases 3
but not in terrorism cases. Critics suggest that it is little more than a constitutionally suspect 4
“trophy” power, easily abused and of little legitimate use.
More precisely, it might be said in favor of the use of administrative subpoenas in criminal
investigations that they:
• provide a time-honored, court-approved means for agencies to acquire 5
information in order to make well informed decisions;
• should be available for terrorism investigations;6
• do not ordinarily require probable cause and consequently can be used from the 7
beginning of an inquiry to gather information;
1 “Congress should change the law, and give law enforcement officials the same tools they have to fight terror they
have to fight other crime. Here’s some examples. Administrative subpoenas, which enable law enforcement officials to
obtain certain records quickly, are critical to many investigations. They’re used in a wide range of criminal and civil
matters, including health care fraud and child abuse cases. Yet, incredibly enough, in terrorism cases, where speed is
often of the essence, officials lack the authority to use administrative subpoenas. If we can use these subpoenas to catch
crooked doctors, the Congress should allow law enforcement officials to use them to catch terrorists,” President George
W. Bush, Progress Report on the Global War on Terrorism (Sept. 10, 2003), available at http://www.whitehouse.gov/
news/releases/2003/09/20030910-6.html; See also, H.R. 3037 (Rep. Feeney); S. 2555 (Sen. Kyl); S. 2679; (Sen. Kyl); th
H.R. 3179 (Rep. Sensenbrenner); all in the 108 Congress; see also, Tools to Fight Terrorism: Subpoena Authority and
Pretrial Detention for Terrorists: Hearing Before the Subcomm. on Terrorism, Technology and Homeland Security of th
the Senate Comm. on the Judiciary (Senate Hearings I), 108 Cong., 2d Sess. (2004); A Review of the Tools to Fight
Terrorism Act: Hearing Before the Subcomm. on Terrorism, Technology, and Homeland Security of the Senate Comm. th
on the Judiciary (Senate Hearings II), 108 Cong., 2d Sess. (2004), Member and witness statements available at
Earlier versions of this report included a discussion of national security letter authority. “National Security Letters,”
used in national security investigations rather than criminal investigations and which resemble administrative
subpoenas in many respects, are beyond the scope of this report, but are the subject of separate reports: CRS Report
RL33320, National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments,
and CRS Report RS22406, National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal
Background and Recent Amendments, both by Charles Doyle.
2 E.g., S. 600 (Sen. Lugar), H.R. 3726 (Rep. Pence), H.R. 4170 (Rep. Sessions).
3 E.g., Senate Hearings I, Prepared Statement of United States Principal Deputy Assistant Attorney General Rachel
Brand; Senate Hearings II, Prepared Statement of United States Assistant Attorney General Daniel J. Bryant.
4 E.g., Senate Hearings I, Prepared Statement of Mr. James Robinson; Housing Hearings, Prepared Statement of Mr.
5 Office of Legal Policy, United States Department of Justice, Report to Congress on the Use of Administrative
Subpoena Authorities by Executive Branch Agencies and Entities (DoJ Report), 7 (2002), available on March 10, 2006
6 E.g., Senate Hearings I, Prepared Statement of United States Principal Deputy Assistant Attorney General Rachel
• can be used to gather information held by third parties other than the target of an 8
• often can encourage the cooperation of third parties by providing immunity for 9
cooperation similar to that available in a judicial context;
• often can make third parties subject to nondisclosure requirements thereby
reducing the possibility that the target of an investigation will flee, destroy 10
evidence, or intimidate witnesses, or the risks to national security;
• can be made judicially enforceable both to ensure compliance and to safeguard 11
• are less intrusive than search warrants; material is gathered and delivered by the
individual rather than seized by the government; there is ordinarily an interval
between the time of service of the subpoena and the time for compliance, 12
allowing parties to consult an attorney;
• can be more easily and quickly used than grand jury subpoenas, but are otherwise 13
• are now available for investigations relating to some crimes and there is no
obvious reason why they should not be available for other equally serious 14
On the other hand, it might be said that in the context of a criminal or foreign intelligence
investigation that administrative subpoenas:
• are more likely to lead to unjustified intrusions of privacy;15
• in terrorism cases, seem to replicate and expand existing national security letter 16
authority, without an explanation as to why additional authority is needed;
• lack the judicial safeguards that accompany the issuance of a search warrant, 17
probable cause and issuance by a neutral magistrate, among other things;
7 Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 201 (1946).
8 E.g., House Hearings, Prepared Statement of United States Assistant Attorney General Daniel J. Bryant.
9 Paine v. City of Lompoc, 265 F.3d 975, 981 (9th Cir. 2001); Scarbrough v. Myles, 245 F.3d 1299, 1305 (11th Cir.
10 E.g., House Hearings, Prepared Statement of United States Assistant Attorney General Daniel J. Bryant.
11 E.g., Senate Hearings I, Prepared Statement of United States Principal Deputy Assistant Attorney General Rachel
12 Cf., In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d 847, 854 (9th Cir. 1991)(distinguishing
subpoenas from search warrants).
13 E.g., Senate Hearings I, Prepared Statement of United States Principal Deputy Assistant Attorney General Rachel
14 Senate Hearings II, Prepared Statement of Mr. Barry Sabin, Chief, Counterterrorism Section of the Criminal
Division, United States Department of Justice.
15 E.g., Senate Hearings I, Prepared Statement of former United States Assistant Attorney General James Robinson.
16 E.g., House Hearings, Prepared Statement of former Representative Bob Barr.
• generally lack the safeguards that accompany the issuance of a grand jury
subpoena in that they ordinarily are not subject to a motion to quash or to the 18
necessary participation of an Assistant United States Attorney;
• are distinguishable from grand jury subpoenas by the simple fact that the
extensive powers available to the grand jury are justified in part by the fact that
the grand jury is not the government but a buffer against the abuse of 19
• can be extremely expensive and disruptive for the person or entity to whom they
are addressed long before the thresholds of overbreadth or oppression (the point 20
at which a subpoena will not be enforced) are reached;
• are subject to easy abuse when they are issued against third parties who may have 21
little interest in contesting their legitimacy;
• are subject to easy abuse when they are issued against third parties who are 22
granted immunity from civil liability for the disclosures;
• are subject to easy abuse when they are issued against third parties who are
subject to permanent gag orders precluding disclosure to targets who might 23
otherwise contest the abuse; and
• are sought for their speed,24 an environment in which mistakes often breed.25
Administrative subpoenas are not a traditional tool of criminal law investigation, but neither are
they unknown. Administrative subpoenas and criminal law overlap in at least four areas. First,
under some administrative regimes it is a crime to fail to comply with an agency subpoena or
with a court order secured to enforce it. Second, most administrative schemes are subject to
criminal prohibitions for program-related misconduct of one kind or another, such as bribery or
false statements, or for flagrant recalcitrance of those subject to regulatory direction. In this mix,
agency subpoenas usually produce the grist for the administrative mill, but occasionally unearth
evidence that forms the basis for a referral to the Department of Justice for criminal prosecution.
Third, in an increasing number of situations, administrative subpoenas may be used for purposes
of conducting a criminal investigation. Finally, particularly in the context of subpoenas used for
criminal investigative purposes involving intelligence matters, disclosure of the existence of a
subpoena may be a criminal offense.
18 E.g., Senate Hearings I, Prepared Statement of former United States Assistant Attorney General James Robinson;
Senate Hearings II, Prepared Statement of Professor Jonathan Turley.
19 E.g., Senate Hearings I, Prepared Statement of former United States Assistant Attorney General James Robinson.
20 E.g., In re Grand Jury Proceedings, 115 F.3d 1240, 1244 (5th Cir. 1997).
21 E.g., Senate Hearings I, Prepared Statement of former United States Assistant Attorney General James Robinson.
24 Senate Hearings I, Prepared Statement of United States Principal Deputy Assistant Attorney General Rachel Brand.
25 Senate Hearings I, Prepared Statement of former United States Assistant Attorney General James Robinson.
Several statutes at least arguably authorize the use of administrative subpoenas primarily or
exclusively for use in a criminal investigation. They are: (1) 18 U.S.C. 3486 (administrative
subpoenas in certain health care fraud, child abuse, and Secret Service protection cases); (2) 21
U.S.C. 876 (Controlled Substances Act cases); and (3) 5 U.S.C.App.(III) 6 (Inspector General 26
investigations). In addition, five statutory provisions vest government officials responsible for
certain foreign intelligence investigations with authority comparable to administrative subpoena 27
access to various types of records.
At common law, a subpoena was a writ ordering an individual to appear before a court or 28
tribunal, sub poena (under penalty) for failure to comply. The writ might simply command the
individual to appear ad testificandum (for purposes of testifying), or it might also include a clause
instructing the witness to appear, again under penalty for his failure (sub poena), duces tecum 29
(bringing with you [some designated item]). Testimonial subpoenas and subpoenas duces tecum
remain a prominent feature of judicial proceedings to this day.
Administrative agencies have long held the power to issue subpoenas and subpoenas duces tecum
in aid of the agency’s adjudicative and investigative functions. When Congress established the
Interstate Commerce Commission, for example, it endowed the Commission with subpoena
“[F]or the purposes of this act the [Interstate Commerce] Commission shall have power to
require the attendance and testimony of witnesses and the production of all books, papers,
tariffs, contracts, agreements, and documents relating to any matter under investigation, and
to that end may invoke the aid of any court of the United States in requiring the attendance
and testimony of witnesses and the production of books, papers, and documents under the
provisions of this section,” Interstate Commerce Act, §12, 24 Stat. 383 (1887).
There are now over 300 instances where federal agencies have been granted administrative 30
subpoena power in one form or another. The statute granting the power ordinarily describes the
circumstances under which it may be exercised: the scope of the authority, enforcement
procedures, and sometimes limitations on dissemination of the information subpoenaed. In some
instances, the statute may grant the power to issue subpoena duces tecum, but explicitly or
26 The text of each is appended. The characterization is “arguably” because both the Inspector General and controlled
substance provisions were intended for, and are used extensively for, purposes other than criminal investigation.
27 18 U.S.C. 2709(communications provider records); 12 U.S.C. 3414 (financial institution records); 50 U.S.C. 436
(same); 15 U.S.C. 1681v (credit agency records); 15 U.S.C. 1681u (same); the text of each is appended. Each
authorizes use of the authority in connection with an investigation into “international terrorism,” a term ordinarily
defined as violent criminal conduct with multinational aspects.
28 III BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND 369 (1768)(transliteration supplied)(“With regard to
parol evidence, or witnesses; it must first be remembered, that there is a process to bring them in by writ of subpoena
ad testificandum: which commands them, laying aside all pretences and excuses, to appear at trial on pain of 100£ to be
forfeited to the king. . . .”).
29 ID. at 382 (“A second defect is of a nature somewhat familiar to the first: the want of a compulsive power for the
production of books and papers belonging to the parties. In the hands of third persons they can generally be obtained by
rule of court, or by adding a clause of requisition to the writ of subpoena, which is then called a subpoena duces
30 DoJ Report, 5 (“Submissions from executive branch entities and legal research identified approximately 335 existing
administrative subpoena authorities held by various executive branch entities under current law.”).
implicitly deny the agency authority to compel testimony.31 The statute may authorize use of the
subpoena power in conjunction with an agency’s investigations or its administrative hearings or 32
both. Authority is usually conferred upon a tribunal or upon the head of the agency. Although
some statutes preclude or limit delegation, agency heads are usually free to delegate such 33
authority and to authorize its redelegation thereafter within the agency.
Some statutes contain a specific mechanism to protect the confidentiality of subpoenaed 34
information, others may rely upon the general proscriptions such as those that protect trade 3536
secrets, or those found in the Privacy and Freedom of Information Acts.
31 See e.g., United States v. Iannone, 610 F.2d 943, 945-47 (D.C.Cir.1979) holding that a statute that grants the
authority “to require by subpoena the production of all information, documents, reports, answers, records, accounts,
papers, and other data” does not include the authority to compel the testimony of witnesses.
32 E.g., 7 U.S.C. 7808(a)(b) (captions omitted): “(a) The Secretary [of Agriculture] may conduct such investigations as
the Secretary considers necessary for the effective administration of this chapter [relating to Hass avocado promotion,
research and information], or to determine whether any person has engaged or is engaging in any act that constitutes a
violation of this chapter or any order or regulation issued under this chapter.
“(b)(1) For the purpose of conducting an investigation under subsection (a) of this section, the Secretary may
administer oaths and affirmations, subpoena witnesses, compel the attendance of witnesses, take evidence, and require
the production of any records that are relevant to the inquiry. The production of the records may be required from any
place in the United States.
“(2) For the purpose of an administrative hearing held under section 7806(a)(2) or 7807(c)(3) of this title [relating to
hearings to contest orders issued under the chapter or penalties imposed for failure to comply with such orders], the
presiding officer may administer oaths and affirmations, subpoena witnesses, compel the attendance of witnesses, take
evidence, and require the production of any records that are relevant to the inquiry. The attendance of witnesses and the
production of the records may be required from any place in the United States.”
33 E.g., 28 U.S.C. 510 (“The Attorney General may from time to time make such provisions as he considers appropriate
authorizing the performance by any officer, employee, or agency of the Department of Justice of any function of the
34 E.g., 15 U.S.C. 796(d)(“Upon a showing satisfactory to the Federal Energy Administrator by any person that any
energy information obtained under this section [which authorizes the use of subpoenas to collect energy information
under the Energy Supply and Environmental Coordination Act and the Emergency Petroleum Allocation Act] from
such person would, if made public, divulge methods or processes entitled to protection as trade secrets or other
proprietary information of such person, such information, or portion thereof, shall be confidential in accordance with
the provisions of section 1905 of Title 18; except that such information, or part thereof, shall not be deemed
confidential for purposes of disclosure, upon request, to (1) any delegate of the Federal Energy Administrator for the
purpose of carrying out this chapter and the Emergency Petroleum Allocation Act of 1973, (2) the Attorney General,
the Secretary of the Interior, the Federal Trade Commission, the Federal Power Commission, or the General
Accounting Office, when necessary to carry out those agencies’ duties and responsibilities under this and other statutes,
and (3) the Congress, or any committee of Congress upon request of the Chairman”).
35 18 U.S.C. 1905 (“Whoever, being an officer or employee of the United States or of any department or agency
thereof, any person acting on behalf of the Office of Federal Housing Enterprise Oversight, or agent of the Department
of Justice as defined in the Antitrust Civil Process Act (15 U.S.C. 1311-1314), or being an employee of a private sector
organization who is or was assigned to an agency under chapter 37 of title 5, publishes, divulges, discloses, or makes
known in any manner or to any extent not authorized by law any information coming to him in the course of his
employment or official duties or by reason of any examination or investigation made by, or return, report or record
made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates
to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data,
amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or
association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to
be seen or examined by any person except as provided by law; shall be fined under this title, or imprisoned not more
than one year, or both; and shall be removed from office or employment”).
36 5 U.S.C. 552a and 5 U.S.C. 552, respectively. Other protective measures include those of the Right to Financial
Privacy Act, 12 U.S.C. 3401 et seq.; the Health Insurance Portability and Accountability Act (HIPAA) regulations, 45
C.F.R. pt.2; the Electronic Communications Privacy Act, 18 U.S.C. 2701 et seq.; the Fair Credit Reporting Act, 15
Failure to comply with an administrative subpoena may pave the way for denial of a license or
permit or some similar adverse administrative decision in the matter to which the issuance of the
subpoena was originally related. In most instances, however, administrative agencies ultimately
rely upon the courts to enforce their subpoenas. Generally, the statute that grants the subpoena 37
power will spell out the procedure for its enforcement.
Objections to the enforcement of administrative subpoenas “must be derived from one of three
sources: a constitutional provision; an understanding on the part of Congress. . . or the general
standards governing judicial enforcement of administrative subpoenas,” SEC v. Jerry T. O’Brien,
Inc., 467 U.S. 735, 741-42 (1984). Constitutional challenges arise most often under the Fourth 38
Amendment’s condemnation of unreasonable searches and seizures, the Fifth Amendment’s 39
privilege against self-incrimination, or the claim that in a criminal context the administrative
subpoena process is an intrusion into the power of the grand jury and the concomitant right to 40
grand jury indictment.
In an early examination of the questions, the Supreme Court held that the Fourth Amendment did
not preclude enforcement of an administrative subpoena issued by the Wage and Hour
Administration notwithstanding the want of probable cause, Oklahoma Press Pub.Co. v. Walling,
The short answer to the Fourth Amendment objections is that the records in these cases
present no question of actual search and seizure, but raise only the question whether orders
of the court for the production of specified records have been validly made; and no sufficient
showing appears to justifying setting them aside. No officer or other person has sought to
enter petitioners’ premises against their will, to search them, or to seize or examine their
books, records or papers without their assent, otherwise than pursuant to orders of court
authorized by law and made after adequate opportunity to present objections, which in were
made. Nor has any objection been taken to the breadth of the subpoenas or to any other
specific defect which might invalidate them. 327 U.S. at 1975.
Neither the Fourth Amendment nor the unclaimed Fifth Amendment privilege against self-
incrimination were thought to pose any substantial obstacle to subpoena enforcement:
U.S.C. 1681 et seq.; and the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g.
37 E.g., 7 U.S.C. 15 (“. . .In case of contumacy by, or refusal to obey a subpoena issued to, any person, the [Commodity
Futures Trading] Commission may invoke the aid of any court of the United States within the jurisdiction in which the
investigation or proceeding is conducted, or where such person resides or transacts business, in requiring the attendance
and testimony of witnesses and the production of books, papers, correspondence, memoranda, and other records. Such
court may issue an order requiring such person to appear before the Commission or member or Administrative Law
Judge or other officer designated by the Commission, there to produce records, if so ordered, or to give testimony
touching the matter under investigation or in question. Any failure to obey such order of the court may be punished by
the court as a contempt thereof. . .”).
38 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized,” U.S. Const. Amend. IV.
39 “. . . nor shall any person . . . be compelled in any criminal case to be a witness against himself . . . .” U.S. Const.
40 “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of
War or public danger. . . .” U.S. Const. Amend. V.
Without attempting to summarize or accurately distinguish all of the cases, the fair
distillation, in so far as they apply merely to the production of corporate records and papers
in response to a subpoena or order authorized by law and safeguarded by judicial sanction,
seems to be that the Fifth Amendment affords no protection by virtue of the self-
incrimination provision, whether for the corporation, or for its officers; and the Fourth, if
applicable, at the most guards against abuse only by way of too much indefiniteness or
breadth in the things required to be particularly described, if also the inquiry is one the
demanding agency is authorized by law to make and the materials specified are relevant. The
gist of the protection is in the requirement, expressed in terms, that the disclosure sought
shall not be unreasonable. 327 U.S. at 208.
Congress had not expressly confined the Wage and Hour Administration’s subpoena power to
instances where probable cause for inquiry existed. Moreover, far from taking offense at any
perceived intrusion upon the prerogatives of the grand jury, proximity was thought to commend
rather than condemn the procedure. The Court considered the Administration akin to the grand
jury whose searches end—rather than begin—with the discovery of probable cause, 327 U.S. at
215 (“The result therefore sustains the Administrator’s position that his investigative function, in
searching out violations with a view to securing enforcement of the act, is essentially the same as
the grand jury’s . . . and is governed by the same limitations. These are that he shall not act
arbitrarily or in excess of his statutory authority, but this does not mean that his inquiry must be
limited by forecasts of the probable result of the investigation”).
A few years later, dicta in United States v. Morton Salt Co., 338 U.S. 632, 652-53 (1950), echoed
the same message—the Fourth Amendment does not demand a great deal of administrative
subpoenas addressed to corporate entities, “a governmental investigation into corporate matters
may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to
exceed the investigatory power. But it is sufficient if the inquiry is within the authority of agency,
the demand is not too indefinite and the information sought is reasonably relevant. ‘The gist of
the protection is in the requirement, expressed in terms, that the disclosure sought shall not be 41
Of course, Fourth Amendment reasonableness is only an issue where there is a justifiable
expectation of privacy, and Fifth Amendment self-incrimination only where an individual is
compelled to speak. As the Court made clear, an individual can claim neither Fourth nor Fifth
Amendment privileges to bar a subpoena for documents held by a bank or other third party nor to 42
a right to notice of the subpoena’s demand.
41 In Morton Salt Co. the government had sought an injunction to enforce compliance with a Federal Trade
Commission cease and desist order and the company had interposed a Fourth Amendment objection. The opinion may
be colored by the Court’s view at the time of the limited Fourth Amendment rights available to corporate entities.
“While they may and should have protection from unlawful demands made in the name of public investigation,
corporations can claim no equality with individuals in the enjoyment of a right to privacy. They are endowed with
public attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial
entities. The Federal Government allows them the privilege of engaging in interstate commerce. Favors from
government often carry with them an enhanced measure of regulation. . . Even if one were to regard the request for
information in this case as caused by nothing more than official curiosity, nevertheless law enforcing agencies have a
legitimate right to satisfy themselves that corporate behavior is consistent with the law and public interest,” 327 U.S. at
42 SEC v. Jerry T. O’Brien, Inc., 467 U.S. at 742-43 (“a person inculpated by materials sought by a subpoena issued to
a third party cannot seek shelter in the self-incrimination, and, whatever may be the pressures exerted upon the person
to whom a subpoena is directed, the subpoena surely does not compel anyone else to be a witness against himself If the
target of an investigation by the SEC has no Fifth Amendment right to challenge enforcement of a subpoena directed at
A statute or conditions precedent to judicial enforcement, however, may require what the
Constitution does not. Nevertheless when asked if the Internal Revenue Service (IRS) must have
probable cause before issuing a summons for the production of documents, the Court intoned the
standard often repeated in response to an administrative subpoena challenge:
“Reading the statutes as we do, the Commissioner need not meet any standard of probable
cause to obtain enforcement of his summons . . . .He must show  that the investigation
will be conducted pursuant to a legitimate purpose,  that the inquiry may be relevant to the
purpose,  that the information sought is not already within the Commissioner’s
possession, and  that the administrative steps required by the Code have been followed . . .
. This does not . . mean that under no circumstances may the court inquire into the
underlying reason for the examination. It is the court’s process which is invoked to enforce
the administrative summons and a court may not permit its process to be abused,” United 43
States v. Powell, 379 U.S. 48, 57-8 (1964).
The lower courts continue to look to Oklahoma Press, Morton Salt, Powell and LaSalle, when 44
called upon to enforce administrative subpoenas.
a third party, he clearly can assert no derivative right to notice when the Commission issues such a subpoena. . . . It is
established that, when a person communicates information to a third party even on the understanding that the
communication is confidential, he cannot object if the third party coveys that information or records thereof to law
enforcement authorities. . . . These rulings disable respondents from arguing that notice of subpoenas issued to third
parties is necessary to allow a target to prevent an unconstitutional search or seizure of his papers”).
43 In the IRS context, the court’s process was not necessarily abused when employed to enforce an administrative
summons issued for purposes of a criminal investigation, at least until the agency referred the matter to the Justice
Department for prosecution, United States v. LaSalle National Bank, 437 U.S. 298 (1978). The IRS summons at issue
in LaSalle had been served “solely for the purpose of unearthing evidence of criminal conduct,” 437 U.S. at 299. Yet,
since “Congress had not categorized tax fraud investigations into civil and criminal components, . . . the primary
limitation on the use of a summons occurs [only] upon the [IRS] recommendation of criminal prosecution to the
Department of Justice.” 437 U.S. at 311. Thereafter, the “likelihood that [government] discovery would be broadened
or the role of the grand jury infringed” contrary to the intent of Congress “is substantial if post-referral use of the
summons authority were permitted,” 437 U.S. at 312.
44 University of Medicine v. Corrigan, 347 F.3d 57, 64 (3d Cir. 2003)(inspector general’s subpoena under 5
U.S.C.App.III, §6)(“A district court should enforce a subpoena if the agency can show that the investigation will be
conducted pursuant to a legitimate purpose; that the inquiry is relevant; that the information demanded is not already in
the agency’s possession, and that the administrative steps required by the statute have been followed. The demand for
information must not be unreasonably broad or burdensome, Wentz, 55 F.3d at 908 (citing Powell, 379 U.S. at 57-58; th
Morton Salt, 338 U.S. at 652)”); In re Subpoena Duces Tecum, 228 F.3d 341, 349 (4 Cir. 2000)(upholding
enforcement of a subpoena issued under 18 U.S.C. 3486 after an analysis citing Oklahoma Press, Morton Salt, and
LaSalle, inter alia)(“In short, an investigative subpoena, to be reasonable under the Fourth Amendment, must be (1)
authorized for a legitimate governmental purpose; (2) limited in scope to reasonably relate to and further its purpose;
(3) sufficiently specific so that a lack of specificity does not render compliance unreasonably burdensome; and (4) not
overly broad for the purposes of the inquiry as to be oppressive, a requirement that may support a motion to quash a
subpoena only if the movant has first sought reasonable condition from the government to ameliorate the subpoena’s
breadth”); Hell’s Angels Motorcycle Corp. v. County of Monterey, 89 F.Supp.2d 1144, 1149 (N.D.Cal. 2000), aff’d sub th
nom., Hell’s Angels Motorcycle Corp. v. McKinley, 360 F.3d 1144 (9 Cir. 2004)(subpoena issued under 21 U.S.C. st
876)(citing United States v. Sturm, Ruger Co., 84 F.3d 1 (1 Cir. 1996) which in turn cites Oklahoma Press, and
Morton Salt)(“the target of an administrative subpoena is entitled at a minimum to a judicial determination that (1) the
subpoena is issued for a congressionally authorized purpose, the information sought is (2) relevant to the authorized
purpose and (3) adequately described, and (4) proper procedures have been employed in issuing the subpoena”); but
see, Doe v. Ashcroft, 334 F.Supp.2d 471, 494-506 (S.D.N.Y. 2004) (distinguishing the traditional administrative
subpoena procedures and finding a Fourth Amendment violation in the coercive practice of exercising NSL authority
under the procedures that do not appear to provide an avenue for judicial approval or review).
Both sides of the debate find support in the law that surrounds the grand jury. Proponents of the
use of administrative subpoenas in criminal cases point out that the courts have often analogized
the administrative inquiry and subpoena power to the inquiries and powers of the grand jury.
Opponents contend the grand jury’s powers depend upon its unique and independent
constitutional status, a foundation the administrative subpoena lacks.
The federal grand jury is certainly unique. It is a constitutionally acknowledged institution
empowered to indict and to refuse to indict: “No person shall be held to answer for a capital, or
otherwise infamous [federal] crime, unless on a presentment or indictment of a grand jury,”
U.S.Const. Amend.V. “[T]he whole theory of its function is that it belongs to no branch of the
institutional government,” but serves “as a kind of buffer or referee between the government and
the people,” United States v. Williams, 504 U.S. 36, 47 (1992).
Nevertheless, the grand jury is attended by Justice Department attorneys who, through the use of
subpoenas and subpoenas duces tecum, arrange for the presentation of evidence before it. Unlike
the search warrant, there is no threshold of probable cause or similar level of suspicion that must
be crossed before the grand jury subpoena can be issued. “[T]he grand jury can investigate merely
on suspicion that the law is being violated, or even because it wants assurance that it is not. It
need not identify the offender it suspects, or even the precise nature of the offense it is
investigating,” United States v. Williams, 504 U.S. at 48. Its proceedings are conducted in secret
and even attorneys for the witnesses who testify before it must await their clients outside the
closed doors of the grand jury chamber. F.R.Crim.P. 6; United States v. Mandujano, 425 U.S. 564,
581 (1976). The subpoena power upon which the grand jury relies, however, is the process of the
court and may be enforced only through the good offices of the court. “And the court will refuse
to lend its assistance when the compulsion the grand jury seeks would override rights accorded by
the constitution or even testimonial privileges recognized at common law,” United States v.
Williams, 504 U.S. at 48.
A subpoena is generally considered less intrusive than a warrant. The warrant authorizes an
officer to enter, search for and seize, forcibly if necessary at a reasonable time of the officer’s
choosing, that property to which the officer understands the warrant refers; the subpoena duces
tecum instructs the individual to gather up the items described at his relative convenience and
bring them before the tribunal at some designated time in the future. The validity of a warrant
may only be contested after the fact; a motion to quash a subpoena can ordinarily be filed and
heard before compliance is required.
There are at least two relatively uncommon exceptions to this general scheme of disparity. First, a 45
subpoena may order “forthwith” compliance, demanding immediate appearance and delivery.
45 A “forthwith” subpoena is a subpoena directing the person to whom it is addressed to appear immediately either to
testify or bring subpoenaed items with him. E.g., United States v. Triumph Capital Group, Inc., 211 F.R.D. 31 th
(D.Conn. 2002); In re Grand Jury Subpoenas, 926 F.2d 541 (9 Cir. 1991); United States v. Sears, Roebuck & Co., th
Inc., 719 F.2d 1386 (9 Cir. 1983); United States v. Lartey, 716 F.2d 955 (2d Cir. 1983); see also, Beale, Bryson, et al.,
GRAND JURY LAW AND PRACTICE, §6:4 (2d ed. 2002)(“Forthwith subpoenas may be justified where there is a danger
that evidence may be destroyed or altered or a witness may flee. The principal objection to the use of the forthwith
subpoenas is that they deprive the subpoenaed party of the opportunity to consult with counsel and to challenge the
validity of the subpoena before the time set for compliance”). Forthwith grand jury subpoenas are only to be used when
an immediate response is justified and require the approval of the United States Attorney, United States Attorneys’
Manual §9-11.140 (1997).
Second, while subpoenas ordinarily involve no bodily intrusions, grand jury subpoenas duces 46
tecum have been issued for blood and saliva samples. Even here, however, the individual served
may choose not to comply and challenge the validity of the subpoena should the government seek
judicial enforcement—an option the individual whose property is subject to a search warrant
clearly does not have.
The Federal Rules of Criminal Procedure declare that grand jury subpoenas duces tecum may be
neither unreasonable or oppressive, F.R.Crim.P. 17(c)(2), a standard originally borrowed from the
civil rules which are now much more expressive, F.R.Civ.P. 45(c). The criminal rule, which at a
minimum is grounded in Fourth Amendment principles, is said to bar only the imprecise, overly
burdensome, irrelevancy-seeking, or privilege-intrusive grand jury subpoena duces tecum. The
Supreme Court demonstrated the deference owed the grand jury’s power of inquiry in United
States v. R. Enterprises, Inc., 498 U.S. 292 (1991). There it observed that a party seeking to quash
a grand jury subpoena duces tecum bears the burden of establishing that a particular subpoena is
unreasonable because it is unduly burdensome or because of its want of specificity or relevancy
and that a notion to quash on relevancy grounds “must be denied unless 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,” 498 U.S. at 301.
The earliest of the three federal statutes used extensively for criminal investigative purposes
appeared with little fanfare as part of the 1970 Controlled Substances Act, 84 Stat. 1272 (1970). It
empowers the Attorney General to issue subpoenas “in any investigation relating to his functions”
under the act, 21 U.S.C. 876(a). In spite of its spacious language, the legislative history of section
876, emphasizes the value of the subpoena power for administrative purposes—its utility in
assigning and reassigning substances to the act’s various schedules and in regulating the activities
of physicians, pharmacists, and the pharmaceutical industry—rather than as a criminal law
Subsection (a) of this section authorizes the Attorney General to subpoena witnesses and
compel their attendance and testimony in investigations relating to his functions under title II
[relating to authority to control; standards and schedules]. He is also authorized to compel
production of records or other tangible things which constitute or contain evidence and upon 47
which he has made a finding as to materiality or relevancy. H.Rept. 91-1444, at 53 (1970).
Nevertheless, the Attorney General has delegated the authority to issue subpoenas under section
876 to both administrative and criminal law enforcement personnel, 28 C.F.R. App. to Pt.0
46 In re Shabazz, 200 F.Supp.2d 578 (D.S.C. 2002); In re Grand Jury Proceedings Involving Vickers, 38 F.Supp.2d 159
(D.N.H. 1998); United States v. Nicolosi, 885 F.Supp. 50 (E.D.N.Y. 1995); In re Grand Jury Proceedings (T.S.), 816
F.Supp. 1196 (W.D.Ky. 1993); Henry v. Ryan, 775 F.Supp. 247 (N.D.Ill. 1991).
47 See also, S.Rept. 91-613, at 29 (1969)(emphasis added) (“Section 606(a) authorizes the Attorney General to
subpoena witnesses and compel their attendance and testimony in hearings relating to the control of controlled
Subpt.R, §4, and the courts have approved their use in inquiries conducted exclusively for 48
purposes of criminal investigation.
Section 876 authorizes both testimonial subpoenas and subpoenas duces tecum, 21 U.S.C. 876(a).
It provides for judicial enforcement; failure to comply with the court’s order to obey the subpoena
is punishable as contempt of court, 21 U.S.C. 876(c). The section contains no explicit prohibition 49
The language of the Inspector General Act of 1978 provision is just as general as its controlled
substance counterpart: “each Inspector General, in carrying out the provisions this act, is
authorized . . . to require by subpoena the production of all information . . . necessary in the
performance of the functions assigned by this Act. . . .” 5 U.S.C.App.(III) 6(a)(4). Its legislative
history supplies somewhat clearer evidence of an investigative tool intended for use in both
administrative and criminal investigations:
Subpoena power is absolutely essential to the discharge of the Inspector and Auditor
General’s functions. There are literally thousands of institutions in the country which are
somehow involved in the receipt of funds from Federal programs. Without the power
necessary to conduct a comprehensive audit of these entities, the Inspector and Auditor
General could have no serious impact on the way federal funds are expended. . . .
The committee does not believe that the Inspector and Auditor General will have to resort
very often to the use of subpoenas. There are substantial incentives for institutions that are
involved with the Federal Government to comply with requests by an Inspector and Auditor
General. In any case, however, knowing that the Inspector and Auditor General has recourse
to subpoena power should encourage prompt and thorough cooperation with his audits and
The committee intends, of course, that the Inspector and Auditor General will use this
subpoena power in the performance of is statutory functions. The use of subpoena power to
obtain information for another agency component which does not have such power would
clearly be improper.
[The committee recognizes that there is a substantial ongoing dispute about the propriety of
so-called third party subpoenas: i.e., subpoenaing records of an individual which are in the
hands of an institution, such as a bank. Since U.S. v. Miller, 425 U.S. 435 (1976), individuals
have been regarded as having no protectable right of property with respect to their bank
records. A law enforcement agency can obtain such records from a bank without any
showing of cause to a neutral magistrate or any notice to the individual involved. The
committee notes that progress has been made on legislation concerning financial privacy
which would require notice to be given to an individual whose bank records are being
obtained by a law enforcement agency. Hopefully, this progress will lead to legislation of
general applicability to all law enforcement authorities, including Inspector and Auditor
Generals]. S.Rept. 95-1071, at 34 (1978)(footnote 7 of the committee report in brackets).
48 United States v. Phibbs, 999 F.2d 1053 (6th Cir. 1993); United States v. Mountain States Tel. & Tel. Co., 516 F.Supp.
225 (D.Wyo. 1981); United States v. Hossbach, 518 F.Supp. 759 (E.D.Pa. 1980).
49 The text of 21 U.S.C. 876 is appended.
The Justice Department reports that the “the Inspector General[’s administrative subpoena]
authority is mainly used in criminal investigations,” DoJ Report, at 6, and the courts have held
that “the Act gives the Inspectors General both civil and criminal investigative authority and 50
subpoena powers coextensive with that authority.”
Subpoena authority under the Inspector General Act is delegable,51 and subpoenas issued under 52
the act are judicially enforceable. The act contains no explicit prohibition on disclosure of the 53
existence or specifics of a subpoena issued under this authority.
Unlike its companions, there can be little doubt that 18 U.S.C. 3486 is intended for use primarily
in connection with criminal investigations. Section 3486 is an amalgam of three relative recent
statutory provisions—one, the original, dealing with health care fraud; one with child abuse
offenses; and one with threats against the President and others who fall under Secret Service
protection. The health care fraud provision comes from the Health Insurance Portability and
Accountability Act, 110 Stat. 2018 (1996), where it caused little comment during consideration of 54
The child abuse subpoenas, on the other hand, generated some illuminating commentary. Enacted
as part of the Protection of Children from Sexual Predators Act, 112 Stat.2984-985 (1998), and
originally codified as 18 U.S.C. 3486A, the subpoena provision represented a compromise. The
House version authorized the general subpoena power for use in the investigation of five federal 55
child abuse offenses. The version that ultimately passed, however, encompassed a wider range
of federal child abuse statutes but only permitted subpoenas for the records of Internet and
telephone communications providers. Senator Leahy, the ranking member of the Senate Judiciary
Committee, explained this portion of the compromise during debate on the bill:
The House bill would have given the Attorney General sweeping administrative authority to
subpoena records and witnesses [for] investigations involving crimes against children. This
proposed authority to issue administrative subpoenas would have given federal agents the
power to compel disclosures without any oversight by a judge, prosecutor, or grand jury, and
without any of the grand jury secrecy requirements. We appreciate that such [secrecy]
requirements may pose obstacles to full and efficient cooperation of federal/state task forces
50 United States v. Aero Mayflower Transit Co., Inc., 831 F.2d 1142, 1145 (D.C.Cir. 1987); see also, Inspector General
v. Banner Plumbing Supply, Co., Inc., 34 F.Supp.2d 682, 688 (N.D.Ill. 1998); United States v. Medic Housing, Inc.,
736 F.Supp. 1531, 1535 (W.D.Mo. 1989).
51 United States v. Custodian of Records, 743 F.Supp. 783, 786 (W.D.Okla. 1990); Doyle v. U.S. Postal Service, 771
F.Supp. 138, 140 (E.D.Va. 1991).
52 5 U.S.C. App.(III) 6(a)(4)(“. . . which subpoena, in the case of contumacy or refusal to obey, shall be enforceable by
order of any appropriate United States District Court . . .”); Inspector General v. Banner Plumbing Supply Co., Inc., 34
F.Supp. 682, 686 (N.D. Ill. 1998); University of Medicine and Dentistry v. Corrigan, 347 F.3d 57, 63 (3d Cir. 2003).
53 The text of 5 U.S.C.App. (III) 6 is appended.
54 The committee reports accompanying passage of the act make no mention of it other than to document its presence,
S.Rept. 104-156 (1995); H.Rept. 104-496 (1996); H.Rept. 104-736 (1996); and the report on a corresponding bill
containing identical language simply summarizes the content of the provision, H.Rept. 104-497, at 97 (1996).
55 See, H.Rept. 105-557, at 6-7(text)(1998); id. at 23 (“Under current law, federal law enforcement authorities may
subpoena records in drug and health care fraud investigations without a court authorized subpoena. . . . The FBI has
experienced difficulty in obtaining subpoenas in jurisdictions where U.S. attorneys lack sufficient resources to support
an investigation of child pedophiles”).
in their joint efforts to reduce the steadily increasing use of the Internet to perpetrate crimes
against children, including crimes involving the distribution of child pornography. In
addition, we understand that some U.S. Attorneys’ Offices are reluctant to open grand jury
investigations when the only goal is to identify individuals who have not yet, and may never,
commit a federal (as opposed to state or local) offense.
The Hatch-Leahy-DeWine substitute accommodates these competing interests by granting
the Department a narrowly drawn authority to subpoena the information that it most needs:
Routine subscriber account information from Internet Service Providers (ISP) which may
provide appropriate notice to subscribers. 144 Cong.Rec. S12264 (daily ed. October 9, 1998).
The compromise did not long survive. Buried in the omnibus funding bill for that year was a 56
second child abuse section (18 U.S.C. 3486A) in addition to section 3486. In the following
Congress when the Secret Service sought subpoena authority in presidential protection cases, its
request and the authority in health care fraud and child abuse cases were merged into the
language of general authority now found in section 3486 and section 3486A disappeared, 114 57
Stat. 2717 (2000). In the process, the demise of the compromise was scarcely mentioned, but its
legacy may live on in the form of the greater detail found in the revamped section 3486.
Section 3486 is both more explicit and more explicitly protective than either of its controlled 58
substance or IG statutory counterparts. In addition to a judicial enforcement provision, it
specifically authorizes motions to quash, 18 U.S.C. 3486(a)(5), and ex parte nondisclosure court 59
orders. It affords those served a reasonable period of time to assemble subpoenaed material and
respond, 18 U.S.C. 3486(a)(2), and in the case of health care investigations the subpoena may call
for delivery no more than 500 miles away, 18 U.S.C. 3486(a)(3). In child abuse and presidential
investigation cases, however, it imposes no such geographical limitation and it may contemplate 60
the use of forthwith subpoenas. It includes a “safe harbor” subsection that shields those who
56 P.L. 105-277, 112 Stat. 2681-72 (1998)(“Section 3486(a)(1) of title 18, United States Code, is amended by inserting
‘or any act or activity involving a Federal offense relating to the sexual exploitation or other abuse of children,’ after
‘health care offense,’”).
57 See, H.Rep.No. 106-669, at 11 n.11 (2000)(“Due to inconsistent acts of Congress, administrative subpoenas have
been authorized in cases involving the sexual exploitation or abuse of children under both section 3486 and section
3486A. See, P.L. 105-77, Title I, §122 and P.L. 105-314, Title I, §606. Section 3486A lists specific crimes for which
these subpoenas may be used while section 3486 does not. The authority under section 3486 is far more limited,
however, and applies only when the subpoena is to be served on a provider of an ‘electronic communication service’ or
‘remote computing service’”).
58 18 U.S.C. 3486(c). The text of 18 U.S.C. 3486 is appended.
59 18 U.S.C. 3486(a)(6)(A)(“A United State district court for the district in which the summons is or will be served,
upon application of the United States, may issue an ex parte order that no person or entity disclose to any other person
or entity (other than to an attorney in order to obtain legal advice) the existence of such summons for a period of up to
90 days. (B) Such order may be issued on a showing that the things being sought may be relevant to the investigation
and there is reason to believe that such disclosure may result in—(i) endangerment to the life or physical safety of any
person; (ii) flight to avoid prosecution; (iii) destruction of or tampering with evidence; or (iv) intimidation of potential
witnesses. (C) An order under this paragraph may be renewed for additional periods of up to 90 days upon a showing
that the circumstances described in subparagraph (B) continue to exist”).
60 18 U.S.C. 3486(a)(9)(“A subpoena issued under paragraph (1)(A)(i)(II) or (1)(A)(ii)[child abuse or Presidential
protection cases] may require production as soon as possible, but in no event less than 24 hours after service of the
subpoena”). It is unclear whether administrative subpoenas in health care cases are exempted from the general rule or
the exception: administrative subpoenas in health care cases are not authorized to require production as soon as
possible, or administrative subpoenas in health care cases may require immediate production without regard to the 24
hour limitation that applies in child abuse and Presidential protection cases. The safer assumption is probably that the
authority is unavailable in health care investigations, since the authority is extraordinary and the need for prompt action
seems likely to arise more often in child abuse and Presidential protection cases.
comply in good faith from civil liability;61 and in health care investigations limits further
dissemination of the information secured, 18 U.S.C. 3486(e).
Although the authority of section 3486 has been used fairly extensively,62 reported case law has
been relatively sparse and limited to health care investigation subpoenas. The first of these simply
held that the subject of a record subpoenaed from a third party custodian has no standing to move 63
that the administrative subpoena be quashed. The others addressed constitutional challenges,
and with one relatively narrow exception agreed that the subpoenas in question complied with the
demands of the Fourth Amendment. They cite Oklahoma Press, Powell and Morton Salt for the
view that administrative subpoenas under section 3486 need not satisfy a probable cause 64
standard. The Fourth Amendment only demands that the subpoena be reasonable, a standard that
requires that “1) it satisfies the terms of its authorizing statute, 2) the documents requested were
relevant to the DoJ’s investigation, 3) the information sought is not already in the DoJ’s
possession, and 4) enforcing the subpoena will not constitute an abuse of the court’s process,”
Of the three statutes that most clearly anticipate use of administrative subpoenas during a criminal
investigation, section 3486 is the most detailed. Neither of the others has a nondisclosure feature
nor a restriction on further dissemination; neither has an explicit safe harbor provision nor an
express procedure for a motion to quash. All three, however, provide for judicial enforcement
reenforced by the contempt power of the court.
Only the controlled substance authority of 21 U.S.C. 876 clearly extends beyond the power to 65
subpoena records and other documents to encompass testimonial subpoena authority as well. 66
The Inspector General Act speaks only of subpoenas for records, documents, and the like, and
61 18 U.S.C. 3486(d)(“Notwithstanding any Federal, State, or local law, any person, including officers, agents, and
employees, receiving a subpoena under this section, who complies in good faith with the subpoena and thus produces
the materials sought, shall not be liable in any court of any State or the United States to any customer or other person
for such production or for nondisclosure of that production to the customer”).
62 The Justice Department reported that in the first full year after the section became effective in its current form United
States Attorneys issued over 2100 administrative subpoenas under the authority of section 3486 and the FBI issued
over 1800 in child abuse cases, DoJ Report, at 40-41. Whether due to novelty of the authority or other circumstances,
no administrative subpoenas were issued under section 3486 to assist the Secret Service, id. at 41. As the Justice
Department report observes, DoJ Report, at 6, the obligation to annually report on the use of the authority under section
3486 expired on December 19, 2003, 5 U.S.C. 551 note.
63 United States v. Daniels, 196 F.R.D. 681, 683-84(D.Kan. 2000), citing inter alia, United States v. Phibbs, 999 F.2d
1053, 1077-78 (6th Cir. 1993), which reached the same conclusion with respect to an administrative subpoena under the
controlled substance provision, 21 U.S.C. 876.
64 In re Subpoenas Duces Tecum (Bailey), 51 F.Supp.2d 726, 731-37 (W.D.Va. 1999), aff’d, 228 F.3d 341, 348-50 (4th
Cir. 2000); In re Administrative Subpoena (Doe, D.P.M.), 253 F.3d 256, 262-64 (6th Cir. 2001). The Government did
not appeal the portion of the opinion from the Western District of Virginia which held that administrative subpoenas
under section 3486 addressed to the subject of a criminal investigation for the production of his personal financial
records must satisfy a probable cause standard, 51 F.Supp. at 734-37, a proposition with which the Sixth Circuit could
not agree, 253 F.3d at 264-65. The Sixth Circuit conceded, however, that in a particular case personal financial records
might lack sufficient relevancy to measure up the Fourth Amendment’s reasonableness standard, 253 F.3d at 270-71.
65 21 U.S.C. 876(a)(“. . . the Attorney General may subpoena witnesses, compel the attendance and testimony of
witnesses, and require the production of any records . . .”).
66 5 U.S.C.App.(III) 6(a)(4) (“. . . each Inspector General . . . is authorized . . . (4) to require by subpoena the
production of all information, documents, reports, answers, records, accounts, papers, and other data and documentary
evidence . . .”).
has been held not to include testimonial subpoenas.67 Section 3486 strikes a position somewhere
in between; the custodian of subpoenaed records or documents may be compelled to testify
concerning them, but there is no indication that the section otherwise conveys the power to issue 68
The law enforcement administrative subpoena proposals introduced thus far in the 109th have
been relatively modest. One appears in the foreign affairs authorization for fiscal years 2006 and
109-35 (2005). The bill authorizes the Secretary of State to issue administrative subpoenas for
documents or custodial testimony in connection with the protection of U.S. foreign missions and
visiting foreign dignitaries, proposed 22 U.S.C. 2709(d). The authority may only be delegated to
the Deputy Secretary of State and generally adopts by cross reference the authority available to
the Secret Service under 18 U.S.C. 3486, id.
A second, H.R. 3726, introduced by Representative Pence amends section 3486to authorize the
use of administrative subpoenas during the course of investigations into the violation of federal
distribution of obscenity laws (18 U.S.C. 1460, 1461, 1462, 1465, 1466, 1468, 1470), proposed
H.R. 4170, introduced by Representative Sessions, authorizes administrative subpoenas in
connection with the investigation as to the whereabouts of fugitives charged or convicted of state
or federal felonies, proposed 18 U.S.C. 1075. The subpoenas are judicially enforceable and
reviewable and failure to comply is punishable as contempt, proposed 18 U.S.C. 1075(d). The
subpoenas may include 30 day gag orders, proposed 18 U.S.C. 1075(f)(3) and recipients are
granted civil immunity for good faith compliance, proposed 18 U.S.C. 1075(g).
In the 108th Congress, H.R. 3037 (Representative Feeney) and S. 2555/S. 2599 (Senator Kyl) of th
the 108 Congress reflected the President’s suggestion that administrative subpoena authority be 69
made available for criminal terrorist investigations. They would have authorized the Attorney
General to issue administrative subpoenas under a relevancy standard in the investigation of
67 Burlington Northern v. Office of Inspector General, 983 F.2d 631, 641 (5th Cir. 1993); see also, United States v.
Iannone, 610 F.2d 943, 945 (D.C.Cir. 1979)(construing identical language from an earlier IG statute to “negate the
argument that in the exercise of his special subpoena power the Inspector General could compel Iannone to appear to
68 18 U.S.C. 3486(a)(1)(“. . . (B) Except as provided in subparagraph (C), a subpoena issued under subparagraph (A)
may require—(i) the production of any records or other things relevant to the investigation; and (ii) testimony by the
custodian of the things required to be produced concerning the production and authenticity of those things. (C) A
subpoena issued under subparagraph (A) with respect to a provider of electronic communication service or remote
computing service, in an investigation of a Federal offense involving the sexual exploitation or abuse of children shall
not extend beyond—(i) requiring that provider to disclose the information specified in section 2703(c)(2), which may
be relevant to an authorized law enforcement inquiry; or (ii) requiring a custodian of the records of that provider to give
testimony concerning the production and authentication of such records or information”).
69 The terrorist administrative subpoena proposals in S. 2555 (Sen. Kyl) and in S. 2679 (Sen. Kyl) are the same. The
bills differ in other respects.
federal crimes of terrorism, as defined in 18 U.S.C. 2332b(g)(5).70 A federal crime of terrorism is
any of over 40 violent federal crimes when committed in a manner “calculated to influence or
affect the conduct of government by intimidation or coercion, or to retaliate against government
conduct,” 18 U.S.C.2332b(g)(5).
The House bill would have granted authority for both testimonial subpoenas and subpoenas duces
tecum. The grant in the Senate bill, much like 18 U.S.C. 3486, was to be limited to materials and 71
custodial testimony authenticating the material subpoenaed. The position represented something
of a middle ground between the controlled substance provision in 21 U.S.C. 876 which authorizes
testimonial subpoenas generally and the Inspector General provision in 5 U.S.C.App.(III) 6 which
authorizes only subpoenas duces tecum.
The bills were otherwise substantively identical. Both would have established a nondisclosure
requirement upon the Attorney General’s certification that national security might otherwise be 72
imperiled. This differs substantially from the approach taken in 18 U.S.C. 3486, the only section
of the three “criminal” administrative subpoena sections that has a nondisclosure component.
Section 3486 permits the court, rather than the Attorney General, to issue the nondisclosure order
upon a showing that disclosure would result in flight, destruction of evidence, witness
intimidation, or the risk of bodily injury, rather than the Attorney General’s national security 73
determination, 18 U.S.C. 3486(a)(6). Moreover, the orders under section 3486 are only good for
90 days unless the court renews them at 90 day intervals upon a showing that the exigent
circumstances which justified their original issuance continue to exist, rather than an indefinite
and potentially permanent tenure at the discretion of the Attorney General, id. Finally, the bills
would have permitted officials to disclose related matters to the media or Congress, but do not 74
afford witnesses a similar privilege without the approval of the Attorney General. A witness for
the Department of Justice testified, however, that “the bill[s] would impose several safeguards on
70 The text of 18 U.S.C. 2332b(g)(5) is appended.
71 “. . . the Attorney General may issue . . . a subpoena requiring the production of any records or other materials that
the Attorney General finds relevant to the investigation, or requiring testimony by the custodian of the materials to be
produced concerning the production and authenticity of those materials,” S. 2555, proposed 18 U.S.C. 2332g(a)(1).
The Senate bill, however, has a somewhat broader description than section 3486 of the power of an enforcing court to
compel testimony on the matter under administrative inquiry: “(1) . . . In the case of the contumacy by . . . any person,
the Attorney General may invoke the aid of any court of the United States . . . to compel compliance with the subpoena.
(2) . . . A court of the United States described in paragraph (1) may issue an order requiring the subpoenaed person. . .
to give testimony touching the matter under investigation. . .” S. 2555, proposed 18 U.S.C. 2332g(c)(emphasis added);
compare this with, 18 U.S.C. 3486(c)(emphasis added) (“ . . . In the case of the contumacy by . . . any person, the
Attorney General may invoke the aid of any court of the United States . . . to compel compliance with the subpoena.
The court may issue an order requiring the subpoenaed person. . . to give testimony concerning the production and
authentication of such records. . .”).
72 H.R. 3037, proposed 18 U.S.C. 2332g(d)(1)(“If the Attorney General certifies that otherwise there may result a
danger to the national security, no person shall disclose to any other person that a subpoena was received or records
were provided pursuant to this section, other than to (A) those persons to whom such disclosure is necessary to in order
to comply with the subpoena, (B) an attorney to obtain legal advice with respect to testimony or the production of
records in response to the subpoena, or (C) other persons as permitted by the Attorney General. The subpoena, or an
officer, employee, or agency of the United States in writing, shall notify the person to whom the subpoena is directed of
such nondisclosure requirement. Any person who receives a disclosure under this subsection shall be subject to the
same prohibition of disclosure”); the same language appears in Senate bill with addition captions and numbering.
73 It is unclear whether this certification authority, like the authority to issue the subpoena itself, may be delegated, is
confined to the Attorney General, or is subject to an intermediate level of delegation.
74 Or possibly of the FBI officer who issued the subpoena, for here again the extent of anticipated delegation is unclear,
although the testimony below suggests there is to be no delegation of this authority.
the use of the nondisclosure provision. The requirement would last only until the Attorney
General determined that the nondisclosure requirement was no longer justified by a danger to the
national security, and the recipient of the subpoena would be notified that the obligation had
expired. In addition, notwithstanding the nondisclosure requirement, the recipient would be
allowed to discuss the subpoena with his or her attorney. The recipient could challenge the
nondisclosure obligation in federal court, and the court could set it aside if doing so would not
endanger the national security,” Senate Hearings I, Prepared Statement of United States Principal
Deputy Assistant Attorney General Rachel Brand.
Both bills would have punished disclosure with imprisonment for not more a year, not more than
five years if committed with the intent to obstruct the investigation or any judicial proceeding,
proposed 18 U.S.C. 2332g(d), a feature unknown, at least expressly, in the case of either 18
U.S.C. 3486, 21 U.S.C. 876, or 5 U.S.C.App.(III) 6. Of course, anyone who discloses the
existence of an administrative subpoena order with an intent to obstruct might be subject to
prosecution under the obstruction of justice provisions of 18 U.S.C. 1503, or as a conspirator, 18
U.S.C. 371, or principle to the commission of the terrorist crime under investigation, 18 U.S.C. 2.
The more innocent form of disclosure proscribed in the bills would not appear to invite
prosecution under existing law.
The bills would have provided for judicial enforcement by means of a court order to comply with
the original subpoena; failure to comply is punishable as contempt of court, proposed 18 U.S.C.
2332g(c). Like 18 U.S.C. 3486(a)(5), they would have authorized witnesses to file petitions to
modify or set aside the subpoena including any nondisclosure requirements in the district court 75
for the district which the witness resides or does business. Few administrative subpoena
schemes have such a provision. On the other hand, neither the bills nor section 3486 allow the
subject of documents subpoenaed from a third party to contest the subpoena even in the absence
of a nondisclosure order.
Again like 18 U.S.C. 3486 but unlike the Inspector General or controlled substance sections, both
bills would have immunized good faith compliance with an administrative subpoena issued under
their provisions, proposed 18 U.S.C. 2332g(f). And they would have authorized the Attorney
General to promulgate implementing guidelines, proposed 18 U.S.C. 2332g(g).
Testifying before the Senate Judiciary Committee’s Subcommittee on Terrorism, Technology and
Homeland Security, Department of Justice witnesses described the need for proposed section
In combating terrorism, prevention is key. The entire Department of Justice has shifted its
focus to a proactive approach to terrorism, reflecting the reality that it not good enough to
wait to prosecute terrorist crimes after they occur. For the law-enforcement officers
responsible for staying a step ahead of the terrorists in these investigations, time is critical.
Even a brief delay in an investigation could be disastrous. Therefore, these officers need
75 H.R. 3037, proposed 18 U.S.C. 2332g(e)(“At any time before the return date specified in the summons, the person or
entity summoned may, in the United States district court for the district in which that person or entity does business or
resides, petition for an order modifying or setting aside the summons. Any such court may modify or set aside a
nondisclosure requirement imposed under subsection (d) at the request of a person to whom a subpoena has been
directed, unless there is reason to believe that the nondisclosure requirement is justified because otherwise there may
result a danger to the national security. In all proceedings under this subsection, the court shall review the government’s
submission, which may include classified information, ex parte and in camera”); the Senate bill uses identical text but
adds additional captions.
tools that allow them to obtain information and act as quickly as possible. Administrative
subpoenas are one tool that will enable investigators to avoid costly delays.
An administrative subpoena is an order from a government official to a third party,
instructing the recipient to produce certain information. Because the subpoena is issued
directly by an agency official, it can be issued as quickly as the development of an
Administrative subpoenas are a well-established investigative tool, currently available in a
wide range of civil and criminal investigations. A 2002 study by the Office of Legal Policy
identified approximately 335 administrative subpoena authorities existing in current law.
These authorities allow the use of administrative subpoenas in investigations of a wide
variety of federal offenses, such as health-care fraud, sexual abuse of children, threats against
the President and others under Secret Service protection, and false claims against the United
Administrative subpoenas are not, however, currently available to the FBI for use in
terrorism investigations. This disparity in the law is illogical, especially considering the
particular need for quick action in terrorism investigations and the potential catastrophic
consequences of a terrorist attack. . . .[I]n terrorism cases, where speed is often of the
essence, officials lack the authority to use administrative subpoenas. If we can use these
subpoenas to catch crooked doctors, the Congress should allow law enforcement officials to
use them in catching terrorists. . . .
Although grand jury subpoenas are a sufficient tool in many investigations, there are
circumstances in which an administrative subpoena would save precious minutes or hours in
a terrorism investigation. For example, the ability to use an administrative subpoena will
eliminate delays caused by factors such as the unavailability of an Assistant United States
Attorney to immediately issue a grand-jury subpoena, especially in rural areas; the time it
takes to contact an Assistant United States Attorney in the context of a time-sensitive
investigation; the lack of a grand jury sitting at the moment the documents are needed (under
federal law, the “return date” for a grand jury subpoena must be a day the grand jury is
sitting); or the absence of an empaneled grand jury in the judicial district where the
investigation is taking place, a rare circumstance that would prevent a grand jury subpoena
form being issued at all. Senate Hearings I, Prepared Statement of United States Principal
Deputy Assistant Attorney General Rachel Brand; see also, Senate Hearings II, Prepared
Statement of Barry Sabin, Chief of the Counterterrorism Section of the Criminal Division,
United States Department of Justice.
Not all of the Congressional witnesses spoke as highly of the proposals. At least one voiced
concerns about its potential for abuse:
Over the years, Congress has been reluctant to expand the powers of criminal law
enforcement agents to interfere with the liberty and privacy rights of American citizens
through administrative subpoenas used exclusively to conduct criminal investigations. While
Congress has authorized administrative subpoenas in a variety of civil—and some
criminal—contexts, the use of such subpoenas for criminal investigations raises a host of
constitutional and policy issues not present in civil administrative matters. To my
knowledge, Congress has never authorized the creation of a potentially secret Executive
branch police proceeding of the type contemplated by these proposals. The benefit to law
enforcement of granting this power must be carefully balanced against the potential loss of
liberty involved. With limited exceptions, absent judicial process such as a search warrant, a
grand jury subpoena or a trial subpoena, American citizens have always had the right to
decline to answer questions put to them by the police or to deliver their documents without a
search warrant . . . .
The administrative subpoenas for terrorism cases contemplated bing the proposals . . . would
compel American citizens to appear for compelled question in secret before the Executive
branch of their government without the participation or protection of the grand jury, or of a
pending judicial proceeding, to answer questions and produce documents. No showing of
reasonable suspicion, or probable cause or imminent need or exigent circumstances would be
required to authorize such subpoenas. . . .
While my experience has been that federal agents act in good faith in conducting their
investigations, nevertheless, as Mark Twain is quoted as having once said: “to a man with a
hammer, a lot of things look like nails.” To an agent with an administrative subpoena, a lot
of things may look like they need a subpoena. Senate Hearings I, Prepared Statement of
former United States Assistant Attorney General James Robinson.
(a) Authorization of use by Attorney General
In any investigation relating to his functions under this subchapter with respect to controlled
substances, listed chemicals, tableting machines, or encapsulating machines, the Attorney General
may subpoena witnesses, compel the attendance and testimony of witnesses, and require the
production of any records (including books, papers, documents, and other tangible things which
constitute or contain evidence) which the Attorney General finds relevant or material to the
investigation. The attendance of witnesses and the production of records may be required from
any place in any State or in any territory or other place subject to the jurisdiction of the United
States at any designated place of hearing; except that a witness shall not be required to appear at
any hearing more than 500 miles distant from the place where he was served with a subpoena.
Witnesses summoned under this section shall be paid the same fees and mileage that are paid
witnesses in the courts of the United States.
A subpoena issued under this section may be served by any person designated in the subpoena to
serve it. Service upon a natural person may be made by personal delivery of the subpoena to him.
Service may be made upon a domestic or foreign corporation or upon a partnership or other
unincorporated association which is subject to suit under a common name, by delivering the
subpoena to an officer, to a managing or general agent, or to any other agent authorized by
appointment or by law to receive service of process. The affidavit of the person serving the
subpoena entered on a true copy thereof by the person serving it shall be proof of service.
In the case of contumacy by or refusal to obey a subpoena issued to any person, the Attorney
General may invoke the aid of any court of the United States within the jurisdiction of which the
investigation is carried on or of which the subpoenaed person is an inhabitant, or in which he
carries on business or may be found, to compel compliance with the subpoena. The court may
issue an order requiring the subpoenaed person to appear before the Attorney General to produce
records, if so ordered, or to give testimony touching the matter under investigation. Any failure to
obey the order of the court may be punished by the court as a contempt thereof. All process in any
such case may be served in any judicial district in which such person may be found.
(a) In addition to the authority otherwise provided by this Act, each Inspector General, in carrying
out the provisions of this Act, is authorized—
(1) to have access to all records, reports, audits, reviews, documents, papers, recommendations, or
other material available to the applicable establishment which relate to programs and operations
with respect to which that Inspector General has responsibilities under this Act;
(2) to make such investigations and reports relating to the administration of the programs and
operations of the applicable establishment as are, in the judgment of the Inspector General,
necessary or desirable;
(3) to request such information or assistance as may be necessary for carrying out the duties and
responsibilities provided by this Act from any Federal, State, or local governmental agency or
(4) to require by subpoena the production of all information, documents, reports, answers,
records, accounts, papers, and other data and documentary evidence necessary in the performance
of the functions assigned by this Act, which subpoena, in the case of contumacy or refusal to
obey, shall be enforceable by order of any appropriate United States district court: Provided, That
procedures other than subpoenas shall be used by the Inspector General to obtain documents and
information from Federal agencies;
(5) to administer to or take from any person an oath, affirmation, or affidavit, whenever necessary
in the performance of the functions assigned by this Act, which oath, affirmation, or affidavit
when administered or taken by or before an employee of an Office of Inspector General
designated by the Inspector General shall have the same force and effect as if administered or
taken by or before an officer having a seal;
(6) to have direct and prompt access to the head of the establishment involved when necessary for
any purpose pertaining to the performance of functions and responsibilities under this Act;
(7) to select, appoint, and employ such officers and employees as may be necessary for carrying
out the functions, powers, and duties of the Office subject to the provisions of Title 5, United
States Code, governing appointments in the competitive service, and the provisions of chapter 51
and subchapter III of chapter 53 of such title relating to classification and General Schedule pay
(8) to obtain services as authorized by section 3109 of Title 5, United States Code, at daily rates
not to exceed the equivalent rate prescribed for grade GS-18 of the General Schedule by section
(9) to the extent and in such amounts as may be provided in advance by appropriations Acts, to
enter into contracts and other arrangements for audits, studies, analyses, and other services with
public agencies and with private persons, and to make such payments as may be necessary to
carry out the provisions of this Act.
(b)(1) Upon request of an Inspector General for information or assistance under subsection (a)(3),
the head of any Federal agency involved shall, insofar as is practicable and not in contravention
of any existing statutory restriction or regulation of the Federal agency from which the
information is requested, furnish to such Inspector General, or to an authorized designee, such
information or assistance.
(2) Whenever information or assistance requested under subsection (a)(1) or (a)(3) is, in the
judgment of an Inspector General, unreasonably refused or not provided, the Inspector General
shall report the circumstances to the head of the establishment involved without delay.
(c) Each head of an establishment shall provide the Office within such establishment with
appropriate and adequate office space at central and field office locations of such establishment,
together with such equipment, office supplies, and communications facilities and services as may
be necessary for the operation of such offices, and shall provide necessary maintenance services
for such offices and the equipment and facilities located therein.
(d) For purposes of the provisions of title 5, United States Code, governing the Senior Executive
Service, any reference in such provisions to the “appointing authority” for a member of the Senior
Executive Service or for a Senior Executive Service position shall, if such member or position is
or would be within the Office of an Inspector General, be deemed to be a reference to such
(e)(1) In addition to the authority otherwise provided by this Act, each Inspector General
appointed under section 3, any Assistant Inspector General for Investigations under such an
Inspector General, and any special agent supervised by such an Assistant Inspector General may
be authorized by the Attorney General to—
(A) carry a firearm while engaged in official duties as authorized under this Act or other
statute, or as expressly authorized by the Attorney General;
(B) make an arrest without a warrant while engaged in official duties as authorized under this
Act or other statute, or as expressly authorized by the Attorney General, for any offense
against the United States committed in the presence of such Inspector General, Assistant
Inspector General, or agent, or for any felony cognizable under the laws of the United States
if such Inspector General, Assistant Inspector General, or agent has reasonable grounds to
believe that the person to be arrested has committed or is committing such felony; and
(C) seek and execute warrants for arrest, search of a premises, or seizure of evidence issued
under the authority of the United States upon probable cause to believe that a violation has
(2) The Attorney General may authorize exercise of the powers under this subsection only upon
an initial determination that—
(A) the affected Office of Inspector General is significantly hampered in the performance of
responsibilities established by this Act as a result of the lack of such powers;
(B) available assistance from other law enforcement agencies is insufficient to meet the need
for such powers; and
(C) adequate internal safeguards and management procedures exist to ensure proper exercise
of such powers.
(3) The Inspector General offices of the Department of Commerce, Department of Education,
Department of Energy, Department of Health and Human Services, Department of Homeland
Security, Department of Housing and Urban Development, Department of the Interior,
Department of Justice, Department of Labor, Department of State, Department of Transportation,
Department of the Treasury, Department of Veterans Affairs, Agency for International
Development, Environmental Protection Agency, Federal Deposit Insurance Corporation, Federal
Emergency Management Agency, General Services Administration, National Aeronautics and
Space Administration, Nuclear Regulatory Commission, Office of Personnel Management,
Railroad Retirement Board, Small Business Administration, Social Security Administration, and
the Tennessee Valley Authority are exempt from the requirement of paragraph (2) of an initial
determination of eligibility by the Attorney General.
(4) The Attorney General shall promulgate, and revise as appropriate, guidelines which shall
govern the exercise of the law enforcement powers established under paragraph (1).
(5)(A) Powers authorized for an Office of Inspector General under paragraph (1) may be
rescinded or suspended upon a determination by the Attorney General that any of the
requirements under paragraph (2) is no longer satisfied or that the exercise of authorized powers
by that Office of Inspector General has not complied with the guidelines promulgated by the
Attorney General under paragraph (4).
(B) Powers authorized to be exercised by any individual under paragraph (1) may be rescinded or
suspended with respect to that individual upon a determination by the Attorney General that such
individual has not complied with guidelines promulgated by the Attorney General under
(6) A determination by the Attorney General under paragraph (2) or (5) shall not be reviewable in
or by any court.
(7) To ensure the proper exercise of the law enforcement powers authorized by this subsection,
the Offices of Inspector General described under paragraph (3) shall, not later than 180 days after
the date of enactment of this subsection, collectively enter into a memorandum of understanding
to establish an external review process for ensuring that adequate internal safeguards and
management procedures continue to exist within each Office and within any Office that later
receives an authorization under paragraph (2). The review process shall be established in
consultation with the Attorney General, who shall be provided with a copy of the memorandum of
understanding that establishes the review process. Under the review process, the exercise of the
law enforcement powers by each Office of Inspector General shall be reviewed periodically by
another Office of Inspector General or by a committee of Inspectors General. The results of each
review shall be communicated in writing to the applicable Inspector General and to the Attorney
(8) No provision of this subsection shall limit the exercise of law enforcement powers established
under any other statutory authority, including United States Marshals Service special deputation.
(1)(A) In any investigation relating of—
(i)(I) a Federal health care offense; or (II) a Federal offense involving the sexual exploitation
or abuse of children, the Attorney General; or
(ii) an offense under section 871 or 879, or a threat against a person protected by the United
States Secret Service under paragraph (5) or (6) of section 3056, if the Director of the Secret
Service determines that the threat constituting the offense or the threat against the person
protected is imminent, the Secretary of the Treasury, may issue in writing and cause to be
served a subpoena requiring the production and testimony described in subparagraph (B).
(B) Except as provided in subparagraph (C), a subpoena issued under subparagraph (A) may
(i) the production of any records or other things relevant to the investigation; and
(ii) testimony by the custodian of the things required to be produced concerning the
production and authenticity of those things.
(C) A subpoena issued under subparagraph (A) with respect to a provider of electronic
communication service or remote computing service, in an investigation of a Federal offense
involving the sexual exploitation or abuse of children shall not extend beyond—
(i) requiring that provider to disclose the information specified in section 2703(c)(2), which
may be relevant to an authorized law enforcement inquiry; or
(ii) requiring a custodian of the records of that provider to give testimony concerning the
production and authentication of such records or information.
(D) As used in this paragraph, the term “Federal offense involving the sexual exploitation or
abuse of children” means an offense under section 1201, 2241(c), 2242, 2243, 2251, 2251A,
2252, 2252A, 2260, 2421, 2422, or 2423, in which the victim is an individual who has not
attained the age of 18 years.
(2) A subpoena under this subsection shall describe the objects required to be produced and
prescribe a return date within a reasonable period of time within which the objects can be
assembled and made available.
(3) The production of records relating to a Federal health care offense shall not be required under
this section at any place more than 500 miles distant from the place where the subpoena for the
production of such records is served. The production of things in any other case may be required
from any place within the United States or subject to the laws or jurisdiction of the United States.
(4) Witnesses subpoenaed under this section shall be paid the same fees and mileage that are paid
witnesses in the courts of the United States.
(5) At any time before the return date specified in the summons, the person or entity summoned
may, in the United States district court for the district in which that person or entity does business
or resides, petition for an order modifying or setting aside the summons, or a prohibition of
disclosure ordered by a court under paragraph (6).
(6)(A) A United State district court for the district in which the summons is or will be served,
upon application of the United States, may issue an ex parte order that no person or entity
disclose to any other person or entity (other than to an attorney in order to obtain legal advice) the
existence of such summons for a period of up to 90 days.
(B) Such order may be issued on a showing that the things being sought may be relevant to the
investigation and there is reason to believe that such disclosure may result in—
(i) endangerment to the life or physical safety of any person;
(ii) flight to avoid prosecution;
(iii) destruction of or tampering with evidence; or
(iv) intimidation of potential witnesses.
(C) An order under this paragraph may be renewed for additional periods of up to 90 days upon a
showing that the circumstances described in subparagraph (B) continue to exist.
(7) A summons issued under this section shall not require the production of anything that would
be protected from production under the standards applicable to a subpoena duces tecum issued by
a court of the United States.
(8) If no case or proceeding arises from the production of records or other things pursuant to this
section within a reasonable time after those records or things are produced, the agency to which
those records or things were delivered shall, upon written demand made by the person producing
those records or things, return them to that person, except where the production required was only
of copies rather than originals.
(9) A subpoena issued under paragraph (1)(A)(i)(II) or (1)(A)(ii) may require production as soon
as possible, but in no event less than 24 hours after service of the subpoena.
(10) As soon as practicable following the issuance of a subpoena under paragraph (1)(A)(ii), the
Secretary of the Treasury shall notify the Attorney General of its issuance.
(b) Service.—A subpoena issued under this section may be served by any person who is at least
18 years of age and is designated in the subpoena to serve it. Service upon a natural person may
be made by personal delivery of the subpoena to him. Service may be made upon a domestic or
foreign corporation or upon a partnership or other unincorporated association which is subject to
suit under a common name, by delivering the subpoena to an officer, to a managing or general
agent, or to any other agent authorized by appointment or by law to receive service of process.
The affidavit of the person serving the subpoena entered on a true copy thereof by the person
serving it shall be proof of service.
(c) Enforcement.—In the case of contumacy by or refusal to obey a subpoena issued to any
person, the Attorney General may invoke the aid of any court of the United States within the
jurisdiction of which the investigation is carried on or of which the subpoenaed person is an
inhabitant, or in which he carries on business or may be found, to compel compliance with the
subpoena. The court may issue an order requiring the subpoenaed person to appear before the
Attorney General to produce records, if so ordered, or to give testimony concerning the
production and authentication of such records. Any failure to obey the order of the court may be
punished by the court as a contempt thereof. All process in any such case may be served in any
judicial district in which such person may be found.
(d) Immunity from civil liability.—Notwithstanding any Federal, State, or local law, any person,
including officers, agents, and employees, receiving a subpoena under this section, who complies
in good faith with the subpoena and thus produces the materials sought, shall not be liable in any
court of any State or the United States to any customer or other person for such production or for
nondisclosure of that production to the customer.
(e) Limitation on use.—(1) Health information about an individual that is disclosed under this
section may not be used in, or disclosed to any person for use in, any administrative, civil, or
criminal action or investigation directed against the individual who is the subject of the
information unless the action or investigation arises out of and is directly related to receipt of
health care or payment for health care or action involving a fraudulent claim related to health; or
if authorized by an appropriate order of a court of competent jurisdiction, granted after
application showing good cause therefor.
(2) In assessing good cause, the court shall weigh the public interest and the need for disclosure
against the injury to the patient, to the physician-patient relationship, and to the treatment
(3) Upon the granting of such order, the court, in determining the extent to which any disclosure
of all or any part of any record is necessary, shall impose appropriate safeguards against
Senior Specialist in American Public Law