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Ignoring Subpoenas = Obstructing Justice

Subpoenas serve an essential element in preserving the Constitution and the rule of law. We allow them to be ignored at our peril.


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Ira Kawaller

2 years ago | 2 min read

8/26/22

While I have no professional experience with subpoenas,from what I’ve been able to gather, the issuance of a subpoena is just part ofan information gathering process, often initiated after earlier requests forthe voluntary submission of information have proven ineffective. When issued,subpoenas lay out starting propositions as to some set of information beingsought; but the parties involved typically end up negotiating the scope of thecontent to be provided.

When it comes to efforts to collect documents, it maybe reasonable to expect some cases of overreach to arise, where the process ofassembling the itemized documents and records could be onerous. In those cases,resistance to fulfilling those demands may be understandable. Beyond that, onecan’t summarily dismiss the possibility that subpoenas could be politicallymotivated. Finding a mutually acceptable balance can be problematic; and undersuch circumstances, a judge may get involved if and when the parties are unableto reach a mutually acceptable resolution.

These considerations clearly came into play over aperiod of many months in connection with the government’s efforts to retrievedocuments from Donald Trump after he left office, culminating with anapparently legally executed search warrant at the Mar-a-Largo property. TheNational Archives had initially contacted Trump about these documents as earlyas March 2021, but it wasn’t until May 2022 that Trump was faced with asubpoena. Some three months following the service of that subpoena, the searchwarrant was executed. (A more detailed timeline relating to the efforts toreclaim these documents is presented here.)

Trump seems to have been caught red handed acting inbad faith, lying about having returned all of the materials that had beenspelled out in a subpoena — documents that never should have been atMar-a-Largo in the first place. From where I sit, the National Archives and theJustice Department acted with inappropriately generous forbearance, given thehistory. Trump forced the Justice Department to take this heretoforeunprecedented step by his own intransigence.

Meanwhile, in another high-profile case, no comparableresolution seems to be in the offing. Specifically, Republican House membersAndy Biggs (AZ), Mo Brooks (AL), Jim Jordan (OH), Kevin McCarthy (CA), andScott Perry (PA) appear to be continuing in their disregard of Congressionalsubpoenas. It’s possible that some behind-the-scenes negotiations may be goingon that we know nothing about in the case of these various Congressmen; buteither the committee has been extraordinarily patient in these negotiations, orthey’ve simply elected to let the matter slide. In either case, the apparentlack of urgency or the failure to compel these recalcitrant House members toprovide their testimony is unacceptable. These individuals have informationpertinent to the January 6th Committee’s investigation, and their shielding ofthat information is nothing short of reprehensible.

I have no tolerance for allowing these House member’sassessment as to the Committees legitimacy (or illegitimacy) to serve asjustifications for their disregarding of subpoenas. Congress bears a criticalresponsibility to provide checks and balances, and these representatives arethwarting the fulfillment of that obligation. At the very least, theseCongressmen should show up and testify under oath in a timely manner. I don’tquite understand how that baseline of compliance could or should beobjectionable. More to the point: those who’ve been served a subpoena shouldprovide testimony under oath in a timely manner or else be prosecuted forobstructing justice. 

Duly authorized subpoenas cannot be ignored. Those whofail to comply with subpoenas issued by such governmental agencies arejeopardizing a fundamental tenet that’s at the root of our constitutionalstructure and the rule of law. Their defiance would be shameful for anyone, butit is particularly so for sitting members of Congress who should recognize thethreat that they are imposing. Their conduct should disqualify them fromserving as elected officials at any level. They’re not worthy of our trust.

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Ira Kawaller

Ira Kawaller holds a Ph.D. in economics from Purdue University and has held adjunct professorships at Columbia University and Polytechnic University. For the bulk of his career, he focused on financial markets and derivative instruments. He ran the New York office of the Chicago Mercantile exchange from 1980 -1996 before founding three derivatives-related consulting business: Kawaller & Company, LLC, the Kawaller Fund, and Derivatives Litigation Services. In past years, Kawaller served on the board of Hatteras Financial Corp (which merged with Annaly Capital Management, Inc.) and participated on their risk committee and compensation committee. He also served on a variety of professional boards and committees, including the board of the International Association of Financial Engineers (now the International Association for Quantitative Finance) and the Financial Accounting Standard Board's Derivatives Implementation Group.


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