1 00:00:01,920 --> 00:00:06,480 Speaker 1: Welcome to brain Stuff production of I Heart Radio. Hey 2 00:00:06,519 --> 00:00:10,200 Speaker 1: brain Stuff, Lauren vogelbamb Here. If some local magistrate, or 3 00:00:10,280 --> 00:00:12,840 Speaker 1: say the United States Congress ever lays a subpoena on you, 4 00:00:13,200 --> 00:00:15,800 Speaker 1: the best thing to do, probably the easiest thing to do, 5 00:00:16,040 --> 00:00:18,160 Speaker 1: is just show up in court or to the Capitol 6 00:00:18,280 --> 00:00:21,880 Speaker 1: Hill and save yourself all the headaches. You could ignore 7 00:00:21,960 --> 00:00:24,480 Speaker 1: the subpoena. Of course, it happens more than you might 8 00:00:24,520 --> 00:00:27,600 Speaker 1: expect if you choose that route, though, get ready for 9 00:00:27,640 --> 00:00:30,800 Speaker 1: a world of legal hurt involving lawyers, lots of wasted time, 10 00:00:30,960 --> 00:00:34,960 Speaker 1: possible fines, and maybe some jail time. Neither option is great. 11 00:00:35,240 --> 00:00:39,479 Speaker 1: That comes with subpoenas. We spoke with Anthony Madonna, a 12 00:00:39,479 --> 00:00:42,640 Speaker 1: professor of political science at the University of Georgia. He said, 13 00:00:42,840 --> 00:00:45,360 Speaker 1: you're legally bound to show up. The problem with that 14 00:00:45,400 --> 00:00:50,000 Speaker 1: has always been enforcement. Simply. Subpoenas are documents that allow 15 00:00:50,040 --> 00:00:54,120 Speaker 1: attorneys or congress people to gather useful information. That info 16 00:00:54,200 --> 00:00:58,080 Speaker 1: is used in court proceedings or in congressional investigations. Subpoenas 17 00:00:58,160 --> 00:01:00,640 Speaker 1: generally are the same whether they're issued by Congress or 18 00:01:00,640 --> 00:01:04,800 Speaker 1: some other governmental entity. There are two kinds subpoena at 19 00:01:04,840 --> 00:01:07,360 Speaker 1: test of a candom which requires you to testify, and 20 00:01:07,400 --> 00:01:10,440 Speaker 1: subpoena Doocey's teacum, which requires you to hand over some 21 00:01:10,520 --> 00:01:14,559 Speaker 1: kind of tangible evidence. In most cases, an attorney usually 22 00:01:14,560 --> 00:01:17,360 Speaker 1: requests a subpoena and somebody like a justice of the peace, 23 00:01:17,480 --> 00:01:19,920 Speaker 1: a clerk, even a notary public will sign off on it. 24 00:01:20,560 --> 00:01:23,640 Speaker 1: Then it's usually served in person to the one being subpoenaed. 25 00:01:24,520 --> 00:01:26,800 Speaker 1: In the case of a congressional subpoena, it's issued by 26 00:01:26,800 --> 00:01:29,960 Speaker 1: a committee, often performing a duty known as congressional oversight 27 00:01:30,120 --> 00:01:35,680 Speaker 1: pro possible wrongdoing in the government. Congress famously issued subpoenas 28 00:01:35,720 --> 00:01:37,520 Speaker 1: to get to the bottom of the teapot Dome scandal 29 00:01:37,600 --> 00:01:40,720 Speaker 1: of the nineteen twenties and during Watergate in the nineteen seventies. 30 00:01:41,240 --> 00:01:44,760 Speaker 1: More recently, the Republican backed Benghazi Report in sixteen is 31 00:01:44,760 --> 00:01:47,199 Speaker 1: a prime example of the use of subpoenas to investigate, 32 00:01:47,600 --> 00:01:50,320 Speaker 1: as are the Democrat fueled inquiries into the administration of 33 00:01:50,360 --> 00:01:53,480 Speaker 1: Donald Trump, his finances, and any possible connections to Russian 34 00:01:53,520 --> 00:01:58,120 Speaker 1: interference in the twenty sixteen presidential election. So why would 35 00:01:58,160 --> 00:02:01,280 Speaker 1: anyone ignore a subpoena Congress if you hadn't noticed is 36 00:02:01,280 --> 00:02:04,320 Speaker 1: a political body that often acts like it. Interacting with 37 00:02:04,360 --> 00:02:07,680 Speaker 1: it often means dodging a lot of political potholes. Among 38 00:02:07,760 --> 00:02:10,520 Speaker 1: the most publicized of those who have defied congressional subpoena 39 00:02:10,520 --> 00:02:14,320 Speaker 1: in recent years are former Attorney General Eric Holder and 40 00:02:14,400 --> 00:02:17,120 Speaker 1: former White House Counsel Harriet Myers in two thousand eight. 41 00:02:18,200 --> 00:02:21,360 Speaker 1: In early twenty nineteen, Democrats leading the House Judiciary Committee 42 00:02:21,400 --> 00:02:24,120 Speaker 1: subpoena and White House Counsel Don McGann to testify in 43 00:02:24,160 --> 00:02:27,280 Speaker 1: regards to Special Counsel Robert Mueller's report on Russian interference 44 00:02:27,280 --> 00:02:31,079 Speaker 1: in the sixteen election, Trump ordered McGann to ignore the subpoena, 45 00:02:31,440 --> 00:02:34,639 Speaker 1: citing a testimonial immunity for senior advisers to the president. 46 00:02:35,240 --> 00:02:38,120 Speaker 1: Trump famously called the Mueller inquiry a witch hunt and 47 00:02:38,200 --> 00:02:42,400 Speaker 1: blamed angry Democrats for those faced with the subpoena of 48 00:02:42,400 --> 00:02:45,360 Speaker 1: the non congressional variety, going to court and perhaps facing 49 00:02:45,400 --> 00:02:47,480 Speaker 1: people you don't want to see. A soon to be 50 00:02:47,560 --> 00:02:50,799 Speaker 1: excellent divorce case driver who plowed into you your former 51 00:02:50,840 --> 00:02:55,280 Speaker 1: boss is hardly enticing. Sometimes ignoring a subpoena and taking 52 00:02:55,280 --> 00:02:58,880 Speaker 1: your legal lumps seems like the safer bet. Spoiler, it 53 00:02:59,080 --> 00:03:03,560 Speaker 1: probably isn't The courts and Congress have ways of enforcing subpoenas. 54 00:03:03,600 --> 00:03:06,720 Speaker 1: They're not always effective, they often take time, but they 55 00:03:06,720 --> 00:03:10,080 Speaker 1: have their ways. If you ignore or defy subpoena, the 56 00:03:10,120 --> 00:03:12,840 Speaker 1: court that demanded your presence confined you in contempt. A 57 00:03:12,919 --> 00:03:15,960 Speaker 1: fine or jail time is possible. In the case of 58 00:03:15,960 --> 00:03:18,919 Speaker 1: defying a congressional subpoena, the committee that issued to subpoena 59 00:03:19,000 --> 00:03:21,760 Speaker 1: votes to issue a contempt citation, and then the full 60 00:03:21,840 --> 00:03:24,839 Speaker 1: chamber votes on it if it passes. Congress has three 61 00:03:24,840 --> 00:03:28,880 Speaker 1: ways to prosecute contempt charges. The first, according to the 62 00:03:28,919 --> 00:03:32,639 Speaker 1: Congressional Research Service, quote, a single House of Congress may 63 00:03:32,639 --> 00:03:35,360 Speaker 1: certify a contempt citation to the Executive Branch for the 64 00:03:35,360 --> 00:03:38,640 Speaker 1: criminal prosecution of an individual who is willfully refused to 65 00:03:38,680 --> 00:03:42,720 Speaker 1: comply with a committee subpoena. Once the contempt citation is received, 66 00:03:42,920 --> 00:03:46,240 Speaker 1: any prosecution lies within the control of the executive branch. 67 00:03:47,480 --> 00:03:50,320 Speaker 1: That means the Justice Department, a part of the executive branch, 68 00:03:50,480 --> 00:03:54,600 Speaker 1: can decide whether to bring a criminal prosecution, often citing 69 00:03:54,640 --> 00:03:58,360 Speaker 1: executive privilege or other protections. The Justice Department simply declines 70 00:03:58,440 --> 00:04:03,840 Speaker 1: to prosecute. Second, again, quote, a Congress may try to 71 00:04:03,920 --> 00:04:06,680 Speaker 1: enforce a subpoena by seeking a civil judgment declaring that 72 00:04:06,720 --> 00:04:10,280 Speaker 1: the recipient is legally obligated to comply. This process of 73 00:04:10,320 --> 00:04:12,560 Speaker 1: civil enforcement relies on the help of the courts to 74 00:04:12,680 --> 00:04:17,000 Speaker 1: enforce congressional demands, so Congress in this case would file 75 00:04:17,040 --> 00:04:20,680 Speaker 1: a civil suit against the subpoena. Stiffer Madonna said the 76 00:04:20,720 --> 00:04:24,159 Speaker 1: civil lawsuit route has its own problems. It moves really slowly. 77 00:04:24,520 --> 00:04:27,159 Speaker 1: The civil lawsuit is used sort of as leverage. They're 78 00:04:27,160 --> 00:04:29,640 Speaker 1: negotiating with the executive branch and usually get whatever it 79 00:04:29,680 --> 00:04:32,760 Speaker 1: is they're looking for through that. The third type of 80 00:04:32,839 --> 00:04:36,920 Speaker 1: enforcement is inherent contempt power, a rarely used and mostly 81 00:04:36,960 --> 00:04:40,359 Speaker 1: outdated method a Chamber of Congress can actually have. The 82 00:04:40,360 --> 00:04:43,960 Speaker 1: subpoena would be witness jailed for refusing to cooperate from 83 00:04:44,000 --> 00:04:47,960 Speaker 1: the Congressional Research Service again quote. The inherent contempt power 84 00:04:48,040 --> 00:04:51,120 Speaker 1: is a constitutionally based authority given to each house to 85 00:04:51,240 --> 00:04:54,640 Speaker 1: unilaterally arrest and detain an individual found to be obstructing 86 00:04:54,680 --> 00:04:57,360 Speaker 1: the performance of the duties of the legislature. It was 87 00:04:57,440 --> 00:05:01,440 Speaker 1: last used in nineteen thirty five. If you defy congressional 88 00:05:01,480 --> 00:05:04,320 Speaker 1: subpoena and are found guilty of contempt, it's a misdemeanor 89 00:05:04,560 --> 00:05:06,920 Speaker 1: punishable by a fine of one hundred to one thousand 90 00:05:06,920 --> 00:05:10,880 Speaker 1: dollars an imprisonment for one to twelve months. The penalties 91 00:05:10,880 --> 00:05:14,240 Speaker 1: for ignoring non congressional subpoenas vary with jurisdiction and are 92 00:05:14,279 --> 00:05:17,679 Speaker 1: at the discretion of the presiding judge, whether it's bucking 93 00:05:17,680 --> 00:05:21,040 Speaker 1: Congress or your local magistrate. Ignoring a subpoena is clearly 94 00:05:21,040 --> 00:05:23,880 Speaker 1: a gamble. If the paperwork in hours in court don't 95 00:05:23,920 --> 00:05:26,719 Speaker 1: get you, the fine and or jail time might and 96 00:05:26,960 --> 00:05:29,039 Speaker 1: in the end, it's hard to predict what will happen 97 00:05:29,320 --> 00:05:32,240 Speaker 1: if there is an end. Madonna said. One of the 98 00:05:32,279 --> 00:05:34,520 Speaker 1: lines I always like to tell my students is rules 99 00:05:34,560 --> 00:05:36,920 Speaker 1: matter until they don't. At the end of the day. 100 00:05:37,200 --> 00:05:39,719 Speaker 1: Rules matter until someone decides we're going to stop enforcing 101 00:05:39,760 --> 00:05:41,800 Speaker 1: them or going to enforce them in a different way. 102 00:05:42,200 --> 00:05:50,800 Speaker 1: That's scarily or sadly always the case. Today's episode was 103 00:05:50,800 --> 00:05:53,600 Speaker 1: written by John Donovan and produced by Tyler Clang. Brain 104 00:05:53,600 --> 00:05:55,799 Speaker 1: Stuff is a production of I Heart Radios, How Stuff Works. 105 00:05:55,960 --> 00:05:58,599 Speaker 1: Remoin this and lots of other perfectly legal topics. Visit 106 00:05:58,600 --> 00:06:01,200 Speaker 1: our home planet, how stuff Works dot com and for 107 00:06:01,279 --> 00:06:03,760 Speaker 1: more podcasts. For My Heart Radio is at thy heart Radio, 108 00:06:03,800 --> 00:06:06,760 Speaker 1: app Apple podcasts, or wherever you listen to your favorite shows.