Administrative Subpoenas in Criminal Investigations: A Sketch
CRS Report for Congress
Administrative Subpoenas in Criminal
Investigations: A Sketch
Charles Doyle
Senior Specialist
American Law Division
Summary
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. Both the President and Members of Congress
have called for statutory adjustments relating to the use of administrative subpoenas in
criminal investigations. One lower federal court has found the sweeping gag orders and
lack of judicial review that mark one of the national security letter practices
constitutionally defective. Proponents of expanded use emphasize the effectiveness of
administrative subpoenas as an investigative tool and question the logic of its
availability in drug and health care fraud cases but not in terrorism cases. Critics
suggest that it is little more than a constitutionally suspect “trophy” power, easily abused
and of little legitimate use.
Proposals in the 109th Congress for greater use of administrative subpoenas in a
law enforcement context 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 is an abridged version — without footnotes, appendices, quotation marks
and most citations to authority — of CRS Report RL33321, Administrative Subpoenas
in Criminal Investigations: Background and Proposed Adjustments, by Charles Doyle.
Background. 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
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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.
Several statutes at least arguably authorize the use of administrative subpoenas
primarily or exclusive for use in a criminal investigation in cases involving health care
fraud, child abuse, Secret Service protection, controlled substance cases, and Inspector
General investigations. In addition, five statutory provisions vest government officials
responsible for certain foreign intelligence investigations with authority comparable to
administrative subpoena access to various types of records.
Administrative Subpoenas Generally. Administrative agencies have long held
the power to issue subpoenas and subpoenas duces tecum in aid of the agency’s
adjudicative and investigative functions. There are now over 300 instances where federal
agencies have been granted administrative subpoena power in 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 implicitly deny the agency
authority to compel testimony. The statute may authorize use of the subpoena power in
conjunction with an agency’s investigations or its administrative hearings or 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
authority and to authorize its redelegation thereafter within the agency. 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 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.
Constitutional challenges arise most often under the Fourth Amendment’s condemnation
of unreasonable searches and seizures, the Fifth Amendment’s 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 its concomitant Fifth Amendment
right to 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. Neither the
Fourth Amendment nor the unclaimed Fifth Amendment privilege against self-
incrimination were thought to pose any substantial obstacle to subpoena enforcement.
Soon thereafter a second case 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 that the disclosure sought shall not be unreasonable. A statute or
judicial tolerance, 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, the Commissioner need
not meet any standard of probable cause to obtain enforcement of his summons. He must
show [1] that the investigation will be conducted pursuant to a legitimate purpose, [2] that
the inquiry may be relevant to the purpose, [3] that the information sought is not already
within the Commissioner’s possession, and [4] 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.
Criminal Administrative Subpoenas — Controlled Substances Act. The
earliest of the three federal statutes (21 U.S.C. 876) used extensively for criminal
investigative purposes appeared with little fanfare as part of the 1970 Controlled
Substances Act, and empowers the Attorney General to issue subpoenas “in any
investigation relating to his functions” under the act. 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 enforcement tool. Nevertheless,
the Attorney General has delegated the authority to issue subpoenas under section 876 to
both administrative and criminal law enforcement personnel, and the courts have
approved its use in inquiries conducted exclusively for purposes of criminal investigation.
Section 876 authorizes both testimonial subpoenas and subpoenas duces tecum. It
provides for judicial enforcement; failure to comply with the court’s order to obey the
subpoena is punishable as contempt of court; it contains no explicit prohibition on
disclosure.
Inspectors General. 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 of this act, is authorized to require by subpoena the
production of all information necessary in the performance of the functions assigned by
this act. Its legislative history supplies somewhat clearer evidence of an investigative tool
intended for use in both administrative and criminal investigations. The Justice
Department reports that the Inspector General’s administrative subpoena authority is
mainly used in criminal investigations, and the courts have held that the act gives the
Inspectors General both civil and criminal investigative authority and subpoena powers
coextensive with that authority. The act contains no explicit prohibition on disclosure of
the existence or specifics of a subpoena issued under this authority.
Health Care, Child Abuse, and Presidential Protection. Unlike its
companions, there can be little doubt that 18 U.S.C. 3486 is intended for use primarily in
connection with criminal investigations. It is an amalgam of three relatively 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. Section 3486 is both more explicit and more explicitly protective than
either of its controlled substance or IG statutory counterparts. In addition to a judicial
enforcement provision, it specifically authorizes motions to quash and ex parte
nondisclosure court orders. It affords those served a reasonable period of time to
assemble subpoenaed material and respond and in the case of health care investigations
the subpoena may call for delivery no more than 500 miles away. In child abuse and
presidential investigation cases, however, it imposes no such geographical limitation and
it may contemplate the use of “forthwith” subpoenas. It includes a “safe harbor”
subsection that shields those who comply in good faith from civil liability; and in health
care investigations limits further dissemination of the information secured.
Although the authority of section 3486 has been used fairly extensively, 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 that the administrative subpoena be quashed. The
others addressed constitutional challenges, and with one relatively narrow exception
agreed that 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 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 Department of Justice’s investigation, 3) the information sought is not already in
the Department of Justice’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 subpoena records and other documents to encompass testimonial subpoena
authority as well. The Inspector General Act speaks only of subpoenas for records,
documents, and the like, and has been held to not include testimonial subpoenas. 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 testimonial subpoenas.
Proposals for Change. Although more extensive proposals were offered in the
108th Congress, the law enforcement related administrative subpoena proposals in the
109th Congress appear in S. 600, relating to the Secretary of State’s responsibility 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 or convicted of federal or state felonies.