2026 Investigative Summary 3

Investigation of Alleged Use of Improper Subpoena

A U.S. Attorney’s Office (USAO) reported to OPR that in a civil action seeking damages against the United States, a court sanctioned the government after finding that it violated Federal Rule of Civil Procedure (FRCP) 45 by issuing a subpoena that improperly purported to compel a witness to appear at the USAO for questioning.

Based on its investigation, OPR determined that the lead AUSA directed his legal assistant to draft and issue the subpoena, and a second AUSA signed it at the lead attorney’s request but without reviewing it.  OPR concluded that although the lead AUSA who directed the subpoena’s drafting and issuance violated a clear and unambiguous duty imposed by FRCP 45, his conduct did not rise to the level of intentional or reckless professional misconduct because the AUSA’s legal error regarding the purpose of the subpoena, which he referenced in a pleading filed before the subpoena was issued, was the result of a lack of experience handling testimonial subpoenas, a misunderstanding regarding instructions from a supervisor, and the unsanctioned actions of the legal assistant in altering a court subpoena form.  The AUSA also did not review the final subpoena before its issuance because he was away from the office the day it was finalized and issued. OPR concluded that the AUSA’s actions demonstrated an exercise of poor judgment because he failed to ensure that the subpoena complied with FRCP 45 after being cautioned by a supervisor regarding the limits of the subpoena power and further failed to ensure that the subpoena was reviewed for accuracy and conformity with his instructions before it was signed and issued.   

OPR also concluded that the AUSA who signed the improper subpoena violated a clear and unambiguous duty imposed by FRCP 45, however, his actions did not rise to the level of intentional or reckless professional misconduct, nor did they demonstrate poor judgment.  The AUSA that signed the subpoena had limited involvement in the matter, had not participated in the drafting or discussion of the subpoena, was only asked to sign it due to the lead AUSA’s absence from the office, and the lead AUSA did not convey to him that he had not reviewed the subpoena.