 Oxymorons abound in our culture – from eating your “12-ounce poundcake” with “plastic silverware,” to the favorite of spin meisters in this age of Epstein disclosures – “old news.” Count among them the “administrative subpoena” – a perversion of a judicial process at the hands of the executive branch. A subpoena is typically issued by the clerk of a court in the name of the presiding judge, usually seeking the production of documents or other evidence relevant to a case. It can also command a person to appear in court as a witness. This is all in keeping with the Fourth Amendment, which requires judicial review of a search or seizure. Not so with administrative subpoenas, which are executive branch demands for documents with no judicial review whatsoever. Once used sparingly, reliance on administrative subpoenas has exploded since 9/11. They can be deployed not only in serious investigations, but out of curiosity or pique by a government agent. For example, Brent Skorup at the Cato Institute recounts how a Pennsylvania man learned that an administrative subpoena was issued to Google for his computer metadata. What triggered such suspicion? He had emailed a prosecutor urging him not to deport an Afghan immigrant whose plight he had seen in the news. Skorup tracks today’s use of administrative subpoenas as legal “innovations” – coercive, unilateral, and operating absent judicial review –all of which makes them unlike a probable cause warrant or even a subpoena issued under the lax standards of a grand jury. The difference between types of subpoenas, little understood by most Americans, is quite stark, as Skorup notes: “Unlike the grand jury, administrative subpoenas are not anchored in the Constitution or historical practice. Administrative subpoenas are creatures of statute and regulation. Although they trace back to the Interstate Commerce Act of 1887, they were once used sparingly – 19th-century courts held that documents were protected through self-incrimination safeguards – and largely against corporations.” Without judicial oversight, however, administrative subpoenas can now function as tools of warrantless data collection. As PPSA General Counsel Gene Schaerr said, administrative subpoenas “may be likened to a fishing expedition, with Americans as the fish.” During the first Trump administration, the U.S. Department of Justice issued secret subpoenas to telecoms to produce the phone records of two House Members, 43 congressional aides in both parties, and major news organizations in a leak investigation. Not to be outdone, the Biden-appointed special prosecutor Jack Smith subpoenaed telecoms for the phone records of 20 current or former Members of Congress. This practice is a convenient, surreptitious way for government employees to bypass due process and perform general searches of Americans’ personal records. Were Elton John writing a song to describe what’s really going on, the lyrics would start with, “Goodbye, probable cause.” This quiet erosion of a core constitutional safeguard is ripe for review by the U.S. Supreme Court. Only the High Court can recognize this oxymoron for what it is – and restore the constitutional clarity it obscures. Comments are closed.
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