Congressional Research Service ˜ The Library of Congress
CRS Report for Congress
Received through the CRS Web
Order Code RS22122
April 15, 2005
Administrative Subpoenas and National
Security Letters in Criminal and Intelligence
Investigations: A Sketch
Charles Doyle
Senior Specialist
American Law Division
Summary
Administrative subpoena authority, including closely related national security letter
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 and national security letters
in criminal and foreign intelligence 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. This is an abridged version
— without footnotes, appendices, quotation marks and most citations to authority — of
Administrative Subpoenas and National Security Letters in Criminal and Foreign
Intelligence Investigations: Background and Proposed Adjustments, CRS Report
RL32880.
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
purposes of conducting a criminal investigation. Finally, particularly in the context of
