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Journalism of Courage
The US Justice Department over the past week has issued approximately 40 subpoenas to former President Donald Trump aides, furthering its criminal investigation into Trump’s attempt to undermine the 2020 presidential elections, and the subsequent attack on the US Capitol by his supporters on January 6, 2021.
Investigators are reportedly examining Trump’s plan to create fake electors to block Joe Biden’s election win, as well as information about his post-election fundraising.
Federal agents also seized the phones of at least two of Trump’s top advisors — Boris Epshteyn, his in-house counsel and Mike Roman, his campaign strategist, The New York Times reported on Monday (September 12).
Trump is simultaneously facing the heat from a separate criminal investigation into his handling of classified documents that he took to his Mar-a-Lago estate in Florida after his presidency, leading to an FBI raid into his home in August.
A subpoena is a writ issued by a government agency, usually a court to compel someone to appear before court or a parliamentary inquiry committee, or provide documents that they possess.
There are two types of subpoenas. The first is called subpoena ad testificandum, which compels a person to testify before a legal authority, while the second, subpoena duces tecum, orders a person to produce documents, letters, information stored on devices or other physical evidence for use at a hearing or trial.
What happens if you do not obey it?
Subpoena means ‘under penalty,’ and since it is a court-ordered demand, failure to obey the subpoena can subject the person to civil or criminal contempt of court charges. Civil contempt takes place when someone fails to produce the documents or evidence that is requested, or does not follow the terms of the subpoena and thus hinders the judicial process. Criminal contempt, on the other hand, is usually used as punishment for disorderly conduct in court, but can also take place when a person refuses to hand over documents.
Punishment can be in the form of payment of a fine and even imprisonment, or both. In most cases however, the court determines how appropriate the withholding of documents was. According to the University of California, Berkeley website, in such cases, the outcome is usually an order to produce the said documents, as well as an award of attorney’s fees to the party that initiated the contempt proceedings.
Can someone refuse to testify or produce documents before a court?
While generally a subpoenaed person cannot refuse, in certain situations they can potentially legally deny giving testimony or documents. In the US, it can be argued that the information sought from the court violates the Fifth Amendment constitutional right against self incrimination, which means the person cannot be forced to take the stand against their will.
The person can also argue that the information sought is ‘privileged’ under doctor-patient or attorney-client confidentiality. However, there are exceptions to attorney-client privilege, such as in case the client communicated with the lawyer the intent to commit, further or cover up a crime, or if the client discussed the relevant information that had nothing to do with the law.
