1-22.000 – Contested Subpoenas from the Department of Justice to Executive Branch Entities

1-22.100 - Authorization for Issuing, or Requesting Issuance of, Contested Subpoenas to Executive Branch Entities

A Department of Justice component that seeks information directly from a federal agency must endeavor to secure that information without the use of a contested subpoena.[Footnote 1] Though federal agencies are generally expected to cooperate with DOJ information requests, in certain circumstances a contested subpoena to a federal agency may be appropriate. DOJ components may issue, or request that a court or grand jury issue, a contested subpoena only when authorized by the Deputy Attorney General or, when appropriate, the Associate Attorney General.

A. Information Request and Negotiation Requirement

A DOJ component that seeks information directly from a federal agency must first submit an information request to that entity. The request must be submitted, to the extent feasible, in a manner consistent with any applicable agency procedures. If the federal entity receiving the information request declines to provide, in whole or in part, the information sought, or if the requesting DOJ component is otherwise dissatisfied with the federal entity’s response, the DOJ component must try to negotiate an agreeable resolution.

B. Contested Subpoena Approval Process

If the DOJ component and federal entity at issue are unable to reach a resolution over the information request, and the DOJ component believes that a contested subpoena for the requested information is necessary and justified, then the head of the DOJ component may seek authorization to issue or request issuance of that contested subpoena through the following process:

1. The head of the DOJ component shall notify the federal entity at issue that the DOJ component is requesting, under this provision, formal authorization to issue or request issuance of a contested subpoena to be served upon the federal entity. In its notice to the federal entity, the DOJ component must specify the date upon which it plans to seek authorization for the subpoena, which, if practicable, shall be no sooner than two weeks following the date upon which the notice is sent. The component shall also inform the federal entity that the federal entity may submit to the DOJ component its views—which will ultimately be submitted to DOJ leadership—explaining why it believes a subpoena is unwarranted. If the DOJ component must pursue a subpoena expeditiously and determines that compliance with this paragraph would impose an undue delay that materially compromises its interests in a prosecution, litigation, or investigation, then the DOJ component may bypass the requirements in this paragraph and explain the reasons for doing so in requesting authorization, as required below.
2. The head of the DOJ component shall request authorization from the Office of the Deputy Attorney General or, if the component reports to the Office of the Associate Attorney General, from the Office of the Associate Attorney General, to pursue a contested subpoena against a federal government entity. The request must (i) describe the efforts made to obtain the requested information without a subpoena, (ii) include a copy of the proposed subpoena, and (iii) explain why the requested subpoena should be authorized. In explaining why the proposed subpoena should be authorized, the request shall address how the requested information would advance the underlying investigation, litigation, or prosecution, whether and to what degree the subpoena would impose a significant burden on the recipient agency, whether the information can be obtained (in whole or in part) from an alternative source, and any other factors the DOJ component believes are relevant to the decision on whether to authorize the subpoena. If practicable, this request must be made in writing, but to the extent it is made orally, the DOJ component must submit a written record within seven days to the Office of the Deputy Attorney General or the Office of the Associate Attorney General. The DOJ component shall also submit, along with its request, any views conveyed by the relevant federal entity under the preceding paragraph, to the extent the DOJ component received those views.
3. When assessing whether to authorize the issuance, or request for issuance, of the proposed subpoena, the Office of the Deputy Attorney General or the Office of the Associate Attorney General may coordinate a consultation between the relevant DOJ component and other DOJ components on, among other things, the potential representation of the agency in a subpoena enforcement proceeding and any legal issues related to issuance and enforcement of the subpoena. 
4. At the conclusion of this process, the DOJ component may issue, or request that a court or grand jury issue, the proposed subpoena if given authorization by the Deputy Attorney General or the Associate Attorney General.

These guidelines are set forth solely for the purpose of internal Department of Justice guidance.[Footnote 2] They are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal, nor do they place any limitations on otherwise lawful investigative or litigative prerogatives of the Department of Justice.

[Footnote 1] A “contested subpoena” is an administrative or judicial subpoena, issued in connection with any civil or criminal matter, to which the recipient is expected to object.

[Footnote 2] The approval process set forth in this rule shall apply only when a DOJ component is pursuing a contested subpoena against a federal agency or its component, rather than a federal agency official.

[added December 2024]