Enforcement by Federal Magistrates of Summonses Issued by the Federal Bureau of Investigation in Aid of Criminal Investigations and Foreign Intelligence Activities


Certain proposed legislation would have granted the Federal Bureau of Investigation power to issue summonses ordering the production of physical and documentary evidence in aid of federal criminal investigations and foreign intelligence activities. A provision of that legislation allowing United States magistrates to enter orders enforcing such summonses would raise problems under Article III of the Constitution, because it could entail the exercise of the judicial power by officials lacking life tenure and guaranteed non-diminution of compensation.

The Article III problems presented by the foregoing provision could be eliminated by providing that the magistrate's order would be treated as a report of findings and recommendations, subject to de novo review by a United States district judge with respect to findings and recommendations of the magistrate as to which objection is made by any party, whereby the judge could accept, reject, or modify the findings or recommendations of the magistrate.

A provision in the proposed legislation would permit the ex parte issuance of an order prohibiting disclosure of such FBI summonses upon a showing that such disclosure might endanger life or property; cause the flight of a suspect; result in the destruction of or tampering with evidence, or the intimidation of potential witnesses; or defeat federal remedies or penalties. Under the standard articulated in Mathews v. Eldridge, 424 U.S. 319 (1976), the absence of a predeprivation hearing in this provision would not appear to violate the requirements of the Due Process Clause.

Updated July 9, 2014