An administrative subpoena is the power vested in various administrative agencies to compel either testimony
or the production of documents or both to support an agency’s investigation or adjudication.
In recent past, administrative subpoenas have become a very powerful and effective tool of the federal
government. Nowadays, more than 300 departments have administrative subpoena authority in the United
Three reasons exist to explain this development. First, administrative subpoenas, despite ample academic and
congressional criticism, do not require the approval by a judge or other judicial officer. At least
initially, administrative subpoenas can bypass judicial scrutiny. Second, if challenged, courts rarely grant
objections. As long as the requested information is relevant— an arguably open-ended term— courts will not
impede the subpoena’s enforcement. Third, many recipients of administrative subpoenas are misguided by the
word “administrative” and tend to underestimate this powerful governmental sword. To be clear, although
marked “administrative,” administrative subpoenas are often harbingers of serious criminal
Generally, administrative subpoenas fall in one of two categories: OIG subpoenas and subpoenas authorized
under 18 U.S.C. § 3486.
With the Inspector General Act of 1978, Congress tasked newly created federal government departments to root
out corruption and fraud to the detriment of the United States by performing audits, inspections, and
investigations. An OIG investigation typically begins with the receipt of a complaint alleging wrongdoings.
Often, these complaints come anonymous and are acts of revenge by competitors and former employees.
Investigations start with an internal factual review before interviewing witnesses and issuing document
requests. Once the OIG concludes that it has discovered sufficient evidence of a civil or criminal
wrongdoing, the OIG must refer the matter to the Department of Justice, and, specifically, to the U.S.
Attorney’s Office in the federal district in which the investigation is taking place.
The Department of Justice may decline or accept this mandatory delegation. In case of rejection, the OIG will
finalize its investigation resulting in administrative or civil penalties. Should the Department of Justice
consider the matter worthwhile pursuing, the matter will likely come before a grand jury. Witnesses and
documents will be subpoenaed to decide whether or not the required probable cause standard can be met. If
the grand jury finds probable cause to believe that a crime was committed, it will return an indictment
against the targets of the investigations and the case will go to trial or other disposition.
Each Inspector General is authorized to request the production of all information necessary to remediate or
prevent fraud, waste, abuse, and mismanagement in federal government programs. As of today, with few but
growing exceptions, the Inspector General Act solely authorizes subpoenas duces tecum or
documentary requests. The Inspector General’s administrative subpoena authority is mainly used in criminal
investigations and courts have held that the Act gives the Inspectors General both civil and criminal
OIG subpoenas are enforced by United States district courts and prosecuted by the Department of Justice at
the request of the relevant Inspector General as part of the Department’s obligation to conduct litigation
in which the United States is interested.
Although the law allows for objections, courts have firmly established the general enforceability of
administrative subpoenas unless some very narrow exceptions exist. Recognized instances include
constitutional concerns (vagueness, breadth, Fifth Amendment) as well as the general standards governing
judicial enforcement of subpoenas such as relevance of information, unreasonable burden, and issuance in bad
Experience shows that without proper legal representation subpoenaed companies routinely commit one of two
mistakes: they either attempt to fight the subpoena or they act over-compliant and produce even the most
confidential and privileged information.
Both mistakes are fatal. In the first scenario, the subpoenaed entity will quickly face the broad enforcement
power of the involved federal agency. Almost guaranteed, the agency will refer the case to the Department of
Justice and open criminal investigations against the individuals behind the subpoenaed company. In the
second example, when companies are overly compliant and produce records without careful review by
experienced fraud defense attorneys, these companies will almost naturally unearth adverse information that
will form the basis for future criminal prosecution.
Thus, responding to an administrative subpoena is a delicate balancing act between being compliant and
protecting the client’s interest. In fact, it is a skillful bargaining game that is not won by aggressive
and atrocious litigators but by diplomatic and respectful and respected legal advisers.
Our strategic advantage is twofold. First, we have the experience and reputation because we have appeared
before governmental agencies and established a trustworthy climate. Second, we closely work with former
agents, FBI supervisory special agents, certified fraud examiners, former government lawyers, and reputable
compliance officers who all have been on both sides of the table.
2. Subpoenas under 18 U.S.C. § 3486
Prime application of 18 U.S.C. § 3486 is the criminal investigation of federal healthcare offenses. The
statute affords those served a reasonable period of time to respond. In addition to a judicial enforcement
provision, 18 U.S.C. § 3486 specifically authorizes motions to quash and ex parte nondisclosure court
orders. Under this section, the custodian of subpoenaed records or documents may be compelled to testify
concerning them, but there is no indication that the section otherwise conveys the power to issue
Administrative subpoenas under 18 U.S.C. § 3486 need not satisfy a probable cause standard. The Fourth
Amendment only demands that the subpoena be reasonable, a standard that requires that (i) the subpoena
complies with the terms of its authorizing statute, (ii) the documents requested were relevant to the
investigation, (iii) the information sought is not already available, and (iv) enforcing the subpoena will
not constitute an abuse of process.