Congressional Research Service ˜ The Library of Congress
CRS Report for Congress
Received through the CRS Web
Order Code RS22407
March 17, 2006
Administrative Subpoenas in Criminal
Investigations: A Sketch
Charles Doyle
Senior Specialist
American Law Division
Summary
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. Both the President and Members of Congress
have called for statutory adjustments relating to the use of administrative subpoenas in
criminal investigations. One lower federal court has found the sweeping gag orders and
lack of judicial review that mark one of the national security letter practices
constitutionally defective. Proponents of expanded use emphasize the effectiveness of
administrative subpoenas as an investigative tool and question the logic of its
availability in drug and health care fraud cases but not in terrorism cases. Critics
suggest that it is little more than a constitutionally suspect “trophy” power, easily abused
and of little legitimate use.
Proposals in the 109
th
Congress for greater use of administrative subpoenas in a
law enforcement context 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 is an abridged version — without footnotes, appendices, quotation marks
and most citations to authority — of CRS Report RL33321, Administrative Subpoenas
in Criminal Investigations: Background and Proposed Adjustments, by Charles Doyle.
Background. Administrative subpoenas are not a traditional tool of criminal law
investigation, but neither are they unknown. Administrative subpoenas and criminal law
overlap in at least four areas. First, under some administrative regimes it is a crime to fail
to comply with an agency subpoena or with a court order secured to enforce it. Second,
most administrative schemes are subject to criminal prohibitions for program-related
misconduct of one kind or another, such as bribery or false statements, or for flagrant
recalcitrance of those subject to regulatory direction. In this mix, agency subpoenas
usually produce the grist for the administrative mill, but occasionally unearth evidence
that forms the basis for a referral to the Department of Justice for criminal prosecution.
Third, in an increasing number of situations, administrative subpoenas may be used for
