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February 20, 2007

Are Department of Justice Criminal Subpoenas Unconstitutional

I
n 1996, Congress conferred on the Justice Department the authority -- through administrative subpoenas -- to obtain documents outside the grand jury process in connection with a criminal healthcare fraud investigation. See 18 U.S.C. 3486. Unlike other DOJ administrative subpoena statutes, which empower the attorney general to secure evidence in furtherance of both civil regulatory and criminal proceedings (like 21 U.S.C. 876), the healthcare fraud subpoena statute deals exclusively with criminal investigations.

Question: Does 18 USC 3486 violate the Fifth Amendment's Grand Jury Clause by giving the Justice Department, in its role as prosecutor, powers to obtain evidence that were intended to belong exclusively to the grand jury?

Here's what one court remarked on the subject in discussing IRS administrative subpoena authority:

The reason that broad subpoena powers were given to the administrative agency and not to the prosecutorial department lies in our Grand Jury system. Broad investigatory, inquisitory and subpoena powers were given to that body of citizens drawn from the community; like powers were not intended to be in the hands of the prosecutors of crime.

United States v. Weingarden, 473 F.2d 454, 459 n. 9 (6th Cir. 1973).

U.S. District Judge Charles Wyzanski, Jr. -- one of our greatest judges -- expressed a similar view many years earlier:

So far as this Court knows, Congress has never in criminal matters vested the executive with an unrestricted subpoena power to uncover information which might aid in the enforcement of criminal statutes and the preparation of criminal cases.... The Constitution of the United States, the statutes, the traditions of our law, the deep rooted preferences of our people speak clearly. They recognize the primary and nearly exclusive role of the Grand Jury as the agency of compulsory disclosure. That is the inquisitorial body provided by our fundamental law to subpoena documents required in advance of a criminal trial, and in preparation of an indictment or its particularization.

United States v. O'Connor, 118 F. Supp. 248, 250-51 (D. Mass. 1953).

Administrative subpoenas were the byproduct of the expansion of the regulatory state. Their original purpose was to permit agencies like the ICC to gather evidence in furtherance of their authority to make and enforce rules -- an essentially legislative authority in character because it had been delegated by Congress.

But DOJ criminal healthcare subpoenas were created for the very purpose of bypassing the grand jury and letting the criminal prosecutors share the fruits of their investigation with the DOJ's civil prosecutors. That could not be done under a grand jury subpoena because of the secrecy rules prescribed in Fed. R. Crim. P. 6(e).

Similarly, Congress has empowered the FBI to issue "national security letters," which seem to function the same way as a criminal administrative subpoena, to gather evidence for espionage and terror investigations.

Should these processes be held unconstitutional because the grand jury has been cut-out -- even recognizing that it is an AUSA, not the grand jury, that actually fills in the blanks to a grand jury subpoena? At least there, the grand jury -- your neighbors and mine -- gets the information. With administrative subpoenas, the information -- and any abuse of that information -- may never see the light of day.

Posted by shertaugh at February 20, 2007 6:10 AM