Administrative Subpoenas in Criminal Investigations: A Brief Legal Analysis

Publication Date: March 2006

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Justice

Type:

Abstract:

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. Administrative subpoenas are not a traditional tool of criminal law investigation, but neither are they unknown. Several statutes at least arguably authorize the use of administrative subpoenas primarily or exclusively for use in a criminal investigation in cases involving health care fraud, child abuse, Secret Service protection, controlled substance cases, and Inspector General investigations.

As a constitutional matter, the Fourth Amendment only demands that administrative subpoenas be reasonable, a standard that requires that 1) they satisfy the terms of the authorizing statute, 2) the documents requested are relevant to the investigation, 3) the information sought is not already in the government's possession, and 4) enforcing the subpoena will not constitute an abuse of the court's process.

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 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 report is available abridged ­ without footnotes, appendices, and most of the citations to authority ­ as CRS Report RS22407, Administrative Subpoenas in Criminal Investigations: A Sketch, by Charles Doyle.