Stuff You Should Know – "Selects: What's the deal with subpoenas?"

Original Air Date: September 13, 2025

Hosts: Josh Clark & Charles W. "Chuck" Bryant

Episode Overview

In this replay of their October 2019 episode, Josh and Chuck dive deep into the surprisingly complex and sometimes confusing world of subpoenas—legal orders that command someone to testify or provide evidence. The episode unpacks the types, history, and mechanisms of subpoenas, focusing especially on governmental and congressional contexts and why, at the highest levels, subpoenas are frequently ignored with few real-world consequences.

Key Discussion Points & Insights

What Is a Subpoena? Where Does the Word Come From?

• The word "subpoena" is Latin for "under penalty" ([04:43]).
  • Josh: "It means under penalty. And it's typically the first two words that were read in this writ of subpoena, basically saying under penalty of blah, blah, blah."
• Subpoenas require you to comply under threat of fine or jail.

Two Main Types of Subpoenas

1. Subpoena ad testificandum ("to testify")

• Orders a person to appear and give testimony (not necessarily in court, could be a deposition or arbitration). ([06:11])
• Chuck: "That's what that first subpoena is saying to do... you have some information... we need you to come to court and tell your story."

2. Subpoena duces tecum ("bring with you under penalty")

• Commands you to produce documents, evidence, physical items, etc. ([07:22])
• Josh: "That is basically saying, hey, you have a document... you have some sort of bodily fluids we want to get our hands on."

Who Issues and Serves Subpoenas?

• Subpoenas can be issued by courts or Congressional bodies ([05:26], [09:22]).
• Court subpoenas usually involve judges, clerks, and lawyers; Congressional subpoenas depend on committee rules and may require a majority vote.
• Service is typically in person by deputies or process servers but can also occur via mail or public notice if someone evades service ([08:46], [12:09]).

Can You Ignore a Subpoena? What Happens If You Do?

• Evading service can delay but not avoid being served ([12:09]).
  • They may use certified mail or public legal notice if you hide.
  • Josh: "Either way, you're going to end up being considered to have received the subpoena eventually. And if you do, you probably shouldn't ignore it."
• If subpoenaed, you should always consult a lawyer ([13:11]).
  • Chuck: "You don't necessarily have to hire a lawyer, but at least consult with one, like, get some legal advice..."

When Subpoenas Are Ignored—Especially by Government Officials

• Ignoring subpoenas is common at the highest levels, especially for Congressional subpoenas ([13:33]).
  • Example: Eric Holder (Obama's Attorney General) ignored a subpoena related to Operation Fast and Furious; held in contempt of Congress, but nothing happened in the end ([14:07]–[16:25]).
  • Similar outcomes with Harriet Myers and Joshua Bolton (George W. Bush administration).

Congressional Subpoena Enforcement: Why It Often Fails

Three Main Remedies

1. Criminal Contempt (via DOJ): The Justice Department (part of the executive branch) must prosecute, but never does when it involves the executive branch itself ([23:58], [24:36]).
2. Civil Judgment (via the Courts): Congress sues in court, but the process is very slow and can take years ([25:19]).
3. Inherent Contempt Powers: Congress theoretically can have its Sergeant at Arms arrest and jail someone, but this hasn't been done since 1935. Some propose harsh fines instead ([26:04]).

Josh: "From what I can tell, there's just nothing happens to you if you ignore a congressional subpoena. But most people respond to it, because I feel like the further down the food chain you are, the more likely Congress is to do something in retaliation to you." ([23:54])

Subpoenas Are Negotiable

• Subpoenas are not set in stone. Lawyers can negotiate to limit their scope or delay compliance ([20:53]).
• Negotiation happens in courts and also between Congress and the executive branch.
• Often, ignoring or negotiating a subpoena is a stalling tactic ([22:43]).

Case Law and Executive Privilege

Historic Cases:

U.S. v. Cooper (1800):

• Thomas Cooper tried to subpoena President John Adams; court ruled you can't subpoena a sitting president ([29:55]).

U.S. v. Burr (1807):

• Thomas Jefferson was asked for documents; he refused some, citing presidential duties. Led to the concept of "executive privilege" ([31:11]).

United States v. Nixon (1974):

• Supreme Court ordered Richard Nixon to hand over White House tapes, rejecting blanket executive privilege ([36:02], [37:53]).
  • Josh: "Nope, you gotta hand the tapes over. Because we don't think that you're just trying to protect... secrets... We think you're just basically using the COVID of executive privilege to cover your own behind." ([37:21])

Marbury v. Madison (1804):

• Established judicial review, making the Supreme Court the ultimate arbiter between the legislative and executive branches ([40:09]).
  • Josh: "...he established the Supreme Court as the interpreter of what law is constitutional and what isn't."

Other Notable Cases:

• U.S. v. AT&T: Courts required parties to try working out disputes before getting judicial intervention ([38:19]).

Types of Executive Privilege ([32:14])

1. Presidential communications
2. Deliberative process
3. Attorney-client communications
4. Law enforcement investigations
5. National security/diplomatic matters

Modern Congressional Standoffs

• Both Democratic and Republican administrations have resisted congressional oversight by ignoring subpoenas, citing executive privilege, and daring Congress or the courts to act ([49:10]–[50:56]).
• The Trump administration took this to new levels with legal arguments that Congressional subpoenas are unenforceable in court without executive cooperation ([51:27]).
  • Chuck, quoting a Washington Post article: “According to the Justice Department, there is no constitutional or statutory basis for a congressional committee to try to enforce its subpoenas in the federal courts, where the executive branch has decided not to do so.” ([51:52])
• Raises profound questions about checks and balances and potential for executive overreach.
  • Josh: "When you have that, then that means that the executive branch has been removed from the oversight of law. It becomes above the law." ([50:57])

Notable Quotes & Memorable Moments

• Josh, dryly: "All I could think about was really dirty, dark stuff." [05:04]
• Chuck, on ignoring subpoenas: "Sit on it. And because of this... Darrell Issa... sponsored or Intro to Bill to strengthen subpoena enforcement power, and it died in the Senate." [16:25]
• Josh: "It will just delay being served in the long run. There’s other remedies they can use. They can mail it to your house, certified mail... Or... post an ad in the local legal org, in the newspaper, and then that will be considered serving you." [12:09]
• Chuck: “If you get a subpoena yourself, get a lawyer. Don’t be stupid.” [55:42]
• Josh, on historic precedent: “Presidents are excepted from the goings on in normal court stuff, even when they’re directly related to the case, they don’t have to come.” [29:55]
• Chuck, reacting to Trump administration: “It makes you wonder what would have happened if Darrell Issa's bill had gone through... we've seen it on again on both sides of the aisle where one political party will get mad and vote something in that will come back to sting them later on.” [52:23]

Timestamps for Key Segments

• Subpoena Etymology: [04:43]
• Types of Subpoenas (ad testificandum, duces tecum): [06:03] – [07:27]
• Service of Subpoenas & Avoidance (hiding, legal remedies): [11:04] – [12:51]
• Political Subpoena Standoffs (Holder, Myers): [14:07] – [16:25]
• Remedies for Congressional Contempt: [23:03] – [27:25]
• Case Law & Executive Privilege: [28:04] – [36:26]
• Watergate & Nixon Tapes: [35:31] – [37:53]
• Checks and Balances, Judicial Review: [40:09] – [42:11]
• Modern Executive Defiance & DOJ Legal Arguments: [49:10] – [52:23]
• Final Reflections on Checks & Balances Erosion: [55:05] – [55:42]

Tone & Style

• Conversational, dryly humorous, with pop culture references (Legal Eagles, Beaches, Jerry Seinfeld) and asides about 1980s Olympic mascots.
• Candid acknowledgment of the show's limitations ("We would never give official legal advice...")
• Clear concern about contemporary attacks on democratic norms and governmental checks and balances.

Takeaway

• A subpoena may look official and scary, but in practice, its real power—especially at the highest levels of government—depends on the willingness of institutions to enforce and respect it.
• The increasing trend of the executive branch ignoring subpoenas, and the toothlessness of existing enforcement mechanisms, pose serious questions about the future of Congressional oversight and the balance of power in the U.S. government.

Useful if You Haven't Listened

This episode is an accessible, thorough explainer on the mechanics, history, and present-day drama surrounding subpoenas—especially Congressional ones. Anyone baffled by current headlines involving executive defiance or wondering why some legal-looking orders go ignored will find this episode clarifying and occasionally darkly funny.

Tip: If you're ever served with a subpoena (at least outside Congress), heed the hosts' advice: don't ignore it—consult a lawyer!