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There’s a good chance that if you follow the news at all in the coming year, you’re going to hear the word “subpoena” pretty often. It also seems likely that we’re going to hear a lot about people ignoring subpoenas and refusing to comply with them, which leads to an obvious question: Can you get away with that?
On television shows, subpoenas are often treated as magical documents that open doors, force people to testify, and otherwise make stuff happen. And that’s actually not far off from real life: Whether you’ve been subpoenaed to testify (subpoena ad testificandum) or to produce tangible evidence like documents (subpoena duces tecum), your compliance is a legal requirement. That said, paying your taxes is also a legal requirement and people can get away with skipping that one for years.
So can you ignore a subpoena? Sure, of course you can—ignoring a subpoena requires simply doing nothing. The better question is: What happens if you ignore a subpoena? Because it all comes down to enforcement—or lack thereof.
How to evade a subpoena
Before it comes to ignoring or fleeing a subpoena, folks can try to evade it entirely. First, you can try to avoid being served—subpoenas generally have to be served, in person, to the individual being subpoenaed. If you know a subpoena has been issued, you can try to avoid being served in order to avoid compliance. This is actually legal, but the court (or Congress) may eventually give orders to have the subpoena issued in alternate ways, such as a public notice or having the papers served to a substitute, such as another member of your household (like your spouse).
You can also engage your attorneys to try to have the subpoena “quashed.” This is a legal motion claiming the subpoena was flawed or issued incorrectly, and if nothing else, it buys you some time as you can legitimately ignore the subpoena until the motion has been ruled on. Depending on the complexity of the legal case and the court’s schedule, this could buy you anywhere from days to months—and might even result in the subpoena being canceled.
Being held in contempt
If your efforts to sidestep the subpoena fail and you simply ignore it, the consequences come down to enforcement. For most court cases, if you defy a subpoena, the judge will hold you in contempt and can issue a punitive fine—or even send officers to arrest you and hold you in jail, where they can keep you until they decide to set you free or you decide to comply with the subpoena.
If the subpoena comes from Congress, it’s a little less direct. The specific committee that subpoenaed you first issues a citation of contempt, which all of Congress must then vote on. If it passes, Congress can either refer the matter to the Justice Department, which then decides if it’s going to prosecute or not. The advantage there is the resources and reach of the Executive Branch, but the disadvantage is the possibility that the Attorney General won’t sign off on it. Alternatively, Congress can seek a civil judgment and get a court order (known as civil enforcement). This is a slow process, however, and offers a lot of options for you to make it even slower.
Technically, Congress can arrest you, but it hasn’t done that in a long time—1935, to be exact.
If you’re found guilty of contempt of Congress, you can be fined somewhere between $100 and $1,000 and jailed for up to a year. The penalties for defying a court-issued subpoena depend on the jurisdiction and the presiding judge. Whether these are risks worth taking depends a lot on your individual situation and your reasons for resisting a subpoena in the first place. Your best-case scenario is a lot of legal fees, paperwork, and wasted time. Your worst-case scenario is a stint in jail and a generous fine. Whether those are better odds than compliance is entirely up to you.
