Subpoenaing the President Versus the Common Man

An average person charged with a crime misses court on their trial date, but the State enters a nolle prosequi—a dismissal—for which no one but the prosecutor needs to attend the proceeding.

No matter though, the judge officiating this legal “juggernaut” (actually, it’s short and sweet) issues an arrest warrant for the defendant for failing to appear (FTA) for court, essentially non-compliance with a summons.

I’ve seen this happen in Baltimore City courts on multiple occasions even with a defense attorney there protesting. Sometimes it happens as the State dumps a case, but it also occurs at pro forma hearings like arraignments, where a defendant’s presence is also not mandatory.  These moments defy logic. The willingness to expend resources. To find a person, jail them, conduct another hearing and, most appallingly, to deprive an individual of their freedom.

You see, judges can issue warrants if they determine that court orders like summonses or subpoenas have been violated. More often than not, the targets of the warrant are indigent people—clients of mine.

Let’s juxtapose the aforementioned “plight of the peons” with President Donald Trump’s recent mockery of the subpoena process. Amidst Congress’ investigation of potential interference with the 2016 election and subsequent acts to obstruct justice (both associated with him), the President has ignored subpoenas issued by Congress and encouraged several people close to him to do the same, all with impunity.  Further, Trump’s administration has chosen to fight their subpoenas in federal court rather than comply.  Trump’s actions towards and lack of respect for the basic powers of government dilute the meaning of the rule of law and put the hypocrisy of the justice system on full display.

Subpoenas and summonses are essentially the same devices. The nomenclature is often interchangeable. They are both orders designed to compel the appearance of a person or require the production of evidence in court or at a governmental hearing.  Summonses are generally reserved for parties involved in matters while subpoenas also cover witnesses and may deal with tangible evidence. These tools are essential in getting people to show up to court or at hearings and/or to bring important evidence.  

Subpoenas and summonses work because they have teeth. Subpoena literally means “under penalty,” which explains what happens with non-compliance. The body issuing the summons or subpoena can punish those who don’t play by the rules.  The ability to subpoena is so fundamental to our jurisprudence that it’s laid out in the Sixth Amendment for criminal defendants and generally available in courts for all cases.  

Congress also has subpoena powers so that it may conduct investigations for legislative purposes (and special functions like considering impeachment). Congress’ subpoena powers have been recognized by the Supreme Court as far back as 1821. Both judicial and legislative branch subpoenas (and summonses) are enforced through contempt proceedings- in other words, fail to comply and you’ve run afoul of court or Congress. Censure, fine, arrest, jail, or nothing are all potential outcomes in both places, some more likely than others.

As a part of their investigation, the House Judiciary and Oversight Committees have issued subpoenas for Trump’s tax and financial records, for former White House counsel Don McGahn to testify as to damaging statements towards Trump that he made during the Mueller investigation, and for Attorney General William Barr to both appear again and produce the full Mueller report. Trump has refused to turn over any documentation and has insisted that neither McGahn nor Barr testify.  The White House legal team challenged Congress’ subpoenas in court and already lost one round, but has appealed.

Imagine if everyday litigants in the justice system behaved this way.  One of the most difficult aspects of prosecuting cases in Baltimore City is getting witnesses to testify for fear of retaliation or, the flip side, because they lied to investigators to get someone in trouble. Civilians are punished for ignoring subpoenas and are sometimes jailed awaiting trial just to assure their participation. In a way, they are leveraged—freedom for participation. Trump would seem to have no uninterested person show up for court. Another sticky situation for defense attorneys concerns witnesses who want to recant and confide in the defense that they don’t want to appear. Still, we must advise them that the law requires them to go. Wonder how Trump would couch it to them?

Worse, the double standard on enforcement here is glaring. Regular folks get locked up, fined or forced to apologize. Their lives are disrupted and turned upside down even when they don’t have to be in court.  They don’t have the means to challenge subpoenas like Trump even if there was a procedure for that. FTAs in court used to be actual crimes in Maryland, but, thankfully, are no longer prosecuted. However, FTAs, even if explainable, are marks against you and a basis to deny bail at initial appearances in cases.  This is why we have warrant amnesty periods. Many absences can be explained. Generally though, a heavy hand controls the process for my clients.

Meanwhile, the President proclaims with pride that he will skirt the established legal framework of our country and fight the subpoena process and he goes about unblemished. Trump has already shown a disdain towards international diplomacy and national civility, so it should be no surprise that he affords no deference to the rule of law. The distinction among the types of subpoenas (one from courts, and one from Congress) is meaningless especially since Trump’s fight is now in a courtroom. So impeachment aside, contempt proceedings should commence.

It would almost be poetic if a mean, old Baltimore judge could preside and treat the President as they do the common folk. Perhaps then a lesson would be learned for all.

Todd Oppenheim is a lawyer in the felony trial division of the Baltimore City Public Defender’s office. The opinions here are his own. His Twitter is @Opp4Justice.

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