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What is the Constitutional Due Process for Congressional Subpoenas?

Dr. Nick Oberheiden
Attorney Nick Oberheiden
Constitutional Due Process
Team Leadenvelope iconContact Nick

Congressional investigations allow Congress to gather information regarding various areas of law to ensure they fully comprehend the topics before they enact legislation or report key findings. Both the House of Representatives and the Senate are divided into committees, each of which is assigned their own jurisdictions, or area of law, to oversee. Each committee has the power to initiate investigations.

Such investigations can have devastating consequences for you and your business, including reputational damage and financial losses. Hiring an experienced defense attorney is crucial to mount a successful defense strategy and to protect your rights.

About Oberheiden P.C. – Why Choose Us?

If you received a congressional subpoena, you probably worried about what happens next. You need to call Oberheiden, P.C. today!

Being the target of a congressional investigation is serious. Further, congressional investigations are complex. Each committee has its own rules and own agenda. If not handled properly, it can be expensive, and your business can be damaged extensively. You need to build your impenetrable line of defense to protect yourself and your livelihood.

The law office of Oberheiden, P.C. is a nationwide, leading law firm that specializes in defense, litigation, and compliance. We have a long track record of defending clients from invasive governmental inquiries. Our team of attorneys and professionals includes former government prosecutors and former federal agents.

We understand the intricacies and inner operations of Congress. We know how each congressional committee operates and how to protect you from their intrusive investigation.

Happenings of a Congressional Investigation?

Odds are you’ve probably never received a congressional subpoena before. So, you’re probably wondering what the congressional subpoena means and what you must do.

Receiving a Subpoena

First, you just got the subpoena. Why?

A congressional subpoena is issued by a congressional committee during an investigation. During an investigation, each committee examines or scrutinizes a law, policy, or event that falls in their jurisdiction. It is understood that the committees do not have all the information at their fingertips and, thus, must call witnesses for testimony or documentation. To ensure compliance, the committees issue subpoenas, which legally order the production of specified documents or testimony.

You are either the target of the investigation or a witness. The former indicates that the congressional committee is investigating you directly or the business or agency you oversee. The latter indicates that while you are not the subject, the committee feels you possess important information regarding the target or events of the investigation.

The Wording of the Subpoena           

A subpoena can be a couple of pages or dozens of pages long. It depends on what the congressional committee is asking for.

Generally, a subpoena includes the following information:

  • Command to either
    • Produce specified documents listed in the subpoena
    • Testify before the committee OR
    • Both
  • Name of the committee and House of Congress
  • Location to bring documents or appear for testimony
  • Date and time

Generally, the topic of the investigation is not clear. Rather, the subpoena states, for example, to bring documents or testify “on matters of the inquiry.”

Compliance with Subpoena

A subpoena must be complied with. If you do not comply, there are three steps that Congress can take against you.

1. Criminal Contempt Statute

If you fail to comply with a subpoena, Congress can forward your non-compliance to the Department of Justice, recommending criminal charges be brought. Though it is under no obligation, if the DOJ decides to take your case and you are convicted, you can face a fine of up to $1,000 and imprisonment up to 12 months.

2. Civil Enforcement

Another option Congress can take for failure to comply with a subpoena is to sue you in the district courts and thereby obtain a court order, that orders you to comply with the subpoena.

3. Inherent Contempt

The last option Congress can take for failure to comply with a subpoena is to take you into custody and detain you. You will be tried and can then be detained until you comply with the subpoena. This option, however, has not been used for several decades.

Due Process

So, you have a congressional subpoena calling for documents or testimony that you are legally required to obey. Noncompliance can lead to criminal or civil enforcement. But, as stated, the topic of the investigation is not always clear. You may wonder how is this legal and how does this not violate your constitutional rights?

Like due process.

Due Process Definition

Due process refers to the legal procedures that must be taken to protect an individual’s rights and ensure fairness and equality.  

The Fifth Amendment of the United States Constitution states:

“No person shall . . . be deprived of life, liberty, or property, without due process of law.”

When you think of due process, you probably think of criminal proceedings. In such cases, due process refers to rights an individual is entitled to, such as knowing the charges against you; having an impartial jury; being able to examine all the evidence; and having the right to be represented by counsel.

But what does due process mean in congressional investigations?

Due Process in Congressional Proceedings

In congressional hearings, the due process clause requires that before you answer the committee’s questions, you must be informed how the line of questioning is relevant to the topic of the investigation.

Sometimes, the topic of the investigation may be clear. But the Supreme Court has stated that when the subject matter of the congressional inquiry is not clear, Congress cannot compel a witness to answer questions. This is important because, without a proper understanding of the investigation, the witness cannot make an informed decision of whether to answer, how to answer, or if their Fifth Amendment right against self-incrimination needs to be invoked.

Thus, the witness needs to know what the topic of the congressional inquiry is and how the questions relate to the topic. If this standard is not met, then your Fifth Amendment due process right is violated.

Don’t Delay – Contact Us Today!

Our team of lawyers routinely handles cases concerning governmental inquiries. We’ll take the burden off your shoulders. Our team of attorneys and professionals will work diligently to protect your rights and reputation. Contact Oberheiden, P.C., and request a free consultation today!

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