The U.S. Department of Justice (DOJ) is the nation’s top law enforcement agency, and it relies upon its broad subpoena power to compel witnesses, suspects, and targets to provide evidence during civil and criminal investigations.
In order to execute its duties as the nation’s top law enforcement agency, the U.S. Department of Justice (DOJ) has a number of investigative tools at its disposal. One of these tools is the investigative subpoena. Under federal law, the DOJ has the power to obtain subpoenas during both civil and criminal investigations, and subpoenaed witnesses, suspects, and targets that fail to comply can face substantial penalties.
However, responding to a DOJ subpoena presents certain risks as well. There is the risk that you could incriminate yourself (even if you are not currently being treated as a suspect or target), and there is the risk that you could inadvertently waive your attorney-client privilege. Once you do, your mistake cannot be undone (in most cases), and you could suddenly find yourself in a far worse position than what was necessary.
At Oberheiden P.C., we represent clients nationwide in DOJ investigations. We have extensive experience representing clients in responding to DOJ subpoenas, and several of our defense attorneys and consultants also have prior experience as DOJ prosecutors and investigators with the DOJ’s Office of Inspector General (DOJ OIG). If you are looking for experienced federal defense counsel to help you comply with your DOJ subpoena while also protecting your privileged information and mitigating your risk of civil or criminal prosecution, we can help, and we encourage you to contact us immediately so that our federal defense attorneys and former federal agents can get to work right away.
The DOJ Utilizes the Federal Government’s Subpoena Powers During Civil and Criminal Law Enforcement Investigations
The DOJ has the power to secure judicial subpoenas during both civil and criminal law enforcement investigations. As Section 279 of the DOJ’s Criminal Resource Manual explains:
“28 U.S.C. § 1783 authorizes the courts of the United States to issue subpoenas — to a national or resident of the United States located in a foreign country — to appear or to produce evidence. The subpoena may direct the witness to appear in the United States or abroad (e.g., at an American Embassy or consulate).”
While this reference appears in the DOJ’s Criminal Resource Manual, 28 U.S.C. Section 1783 itself states that, “[a] court of the United States may order the issuance of a subpoena requiring the appearance as a witness before . . . [a] body designated by it . . . or requiring the production of a specified document or other thing by him, if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner.” Thus, the DOJ can not only rely on the federal courts’ subpoena power to obtain evidence in criminal cases, but in civil cases (under appropriate circumstances) as well.
Additionally, DOJ prosecutors have the authority to issue administrative subpoenas in certain cases. These subpoenas do not require prior judicial approval, yet they are judicially enforceable, and individuals that fail to comply can face criminal prosecution for federal contempt. The DOJ regularly utilizes both judicial and administrative subpoenas to compel testimony and the production of records in investigations targeting:
- Aggravated identity theft
- Bank fraud, mortgage fraud, and insurance fraud
- Consumer fraud
- Cybercrimes (including computer crimes and cryptocurrency crimes)
- Drug crimes
- Healthcare fraud
- Intellectual property theft and corporate espionage
- Mail fraud and wire fraud
- Money laundering
- Political and election law violations
- Public corruption and bribery
- Securities fraud
- Tax evasion or fraud
- Other white-collar federal crimes
Why Have You Been Subpoenaed by the DOJ?
If you have received a DOJ subpoena, one of the first questions you need to have answered is, “Why?” There are a few different aspects to this question, all of which are equally important. When you engage Oberheiden P.C. to represent you, our attorneys and former DOJ OIG agents will work quickly to discern:
- What triggered the DOJ’s investigation (i.e. did the DOJ receive a whistleblower complaint or a referral from another agency, or did the DOJ’s own law enforcement initiatives result in the inquiry at hand)?
- Is the DOJ pursuing civil or criminal charges? While both civil and criminal DOJ investigations can have significant negative consequences, they involve different processes and procedures, and individuals targeted in civil investigations are not at risk for federal incarceration.
- What are the specific allegations at issue? Is the DOJ investigating allegations of a federal healthcare or drug conspiracy? Or, is it working with the Internal Revenue Service (IRS), Securities and Exchange Commission (SEC), Federal Election Commission (FEC), or another federal agency to target some other type of substantive offense?
- Have you been subpoenaed as a witness, suspect, or target? While testifying or providing records to the DOJ presents risks regardless of your posture in the investigation, knowing how you are being viewed by the DOJ is crucial to developing an informed and strategic response plan.
Once we know why you have been subpoenaed to provide testimony or records to the DOJ, then we can determine what is necessary in terms of your overall defense strategy. At this stage, our attorneys and former DOJ OIG agents will begin working with you to prepare your response and take any other steps that may be necessary in order to prevent prosecutors from taking civil enforcement action or seeking a federal grand jury indictment.
What Do You Need to Know if You Have Been Subpoenaed by the DOJ?
In addition to understanding why you have been subpoenaed, there are a number of other facts you need to know as well. When you engage Oberheiden P.C. to represent you, our attorneys and former DOJ OIG agents will assist in all aspects of your response, including providing detailed and personalized advice on issues such as:
Q: Do you have grounds to challenge the DOJ’s subpoena?
Depending upon whether you have been served with a judicial or administrative subpoena, you could potentially have various grounds to challenge the DOJ’s request for testimony or records. While these grounds are limited – and often will not be sufficient to have a subpoena quashed in its entirety – they may be enough to limit your compliance burden and ensure that you are not at risk for facing an order to compel and subsequently being held in contempt.
Q: What do you need to do in order to comply with the DOJ’s subpoena?
If you have been served with a subpoena ad testificandum, then you will need to prepare to testify under oath. If you have been served with a subpoena duces tecum, then you will need to ensure that you are able to produce all requisite documents by the deadline established by the subpoena. In either case, preparing your response will take time, effort, and a strategic approach, and you will need to rely on the advice of experienced federal defense counsel throughout the process.
Q: What are the risks of non-compliance?
What happens if you are unable to provide the testimony the DOJ is seeking? What if your document production is incomplete, or what if you miss your deadline? When you are subject to a DOJ subpoena, you need to have a clear understanding of the risks of non-compliance, and you need to make sure that you are not at risk for inadvertently falling short of your compliance obligations.
Q: What information or records are you entitled to withhold?
When responding to your DOJ subpoena, you may have grounds to withhold certain information. Our attorneys can determine what information or records you are entitled to withhold, and we can work to ensure that you are not wrongly held in contempt for exercising your legal rights. Two of the most-common grounds for withholding information or records in response to a DOJ subpoena are: (i) assertion of the attorney-client privilege; and, (ii) assertion of the privilege against self-incrimination.
Q: Do you need to be concerned about facing civil or criminal charges?
Finally, given the status of the DOJ’s investigation and your current role in the process, do you need to be concerned about facing civil or criminal charges? Our attorneys can thoroughly assess the risks presented by the circumstances at hand, and we can develop and execute a comprehensive defense strategy focused on fending off federal charges if necessary.
Request a Free Consultation about Your DOJ Subpoena at Oberheiden P.C.
Have you been subpoenaed by the DOJ? If so, we strongly encourage you to speak with one of our senior federal defense attorneys immediately. For a free and confidential case assessment, call 888-680-1745 or tell us how we can reach you online now.