Sunday, June 25, 2017

Trial Series: How to subpoena federal agents (part one)

At some point, you will need to subpoena a federal agent to testify at trial. Usually this will occur when: (1) a witness gives a statement to the agent but (2) the witness denies making the statement. You cannot impeach the witness with the agent’s written report (unless you can prove that the witness adopted it, which is rare) because the report is the agent’s statement — not the witness’s. To be able to prove that the witness said something different to the agent, you will have to call the agent to the witness stand. And to do that, you will need to subpoena that agent.

Subpoenaing a federal agent is more complicated than subpoenaing the usual witness. That is so because of a United States Supreme Court case from 1951, United States ex rel. Touhy v. Regan, which held that executive-department agencies could validly promulgate regulations that restrict their employees from testifying. 340 U.S. 462 (1951). Nearly every agency now has Touhy regulations scattered about the Code of Federal Regulations. If you do not comply with those regulations, the court will quash your subpoena.
The first step is to find which CFR applies, which turns on which agency the witness belongs to. Here are some of the more common agencies you might need testimony from, along with the corresponding CFRs that cover that agency:



Department of Homeland Security (including Immigration & Customs Enforcement)

6 C.F.R. §§ 5.42 — 5.49

Department of Justice (including Federal Bureau of Investigation & Drug Enforcement Administration)

28 C.F.R. §§ 16.21 — 16.29

These regulations spell out who to serve. For instance, for a DHS agent, you must serve your demand on its Office of General Counsel. 6 C.F.R. § 5.43(a). For a DOJ agent, you serve the demand on the Assistant United States Attorney handling the case. 28 C.F.R. § 16.23(c).
These regulations also set out how to make your demand. For a DHS agent, you must specifically put forth, in writing, the nature and relevance of the information you seek. 6 C.F.R. § 5.45(a). For a DOJ agent, on the other hand, you must supply a written statement, by affidavit if feasible, setting forth summary of testimony sought. 28 C.F.R. § 16.23(c).

Finally, these regulations set out what the agency will consider in deciding whether to permit the agent to testify or produce documents. For DHS agents, the factors are contained in 6 C.F.R. § 5.48, and for DOJ agents they lie in 28 C.F.R. § 16.26.

Practically speaking, you should:

1. At least 45 days before trial, obtain a trial subpoena under Rule 17(b) for any agent that you might need to impeach a witness.

2. Draft a letter that contains: (a) the request for testimony or documents that complies with the applicable regulation (i.e. affidavit, etc.); (b) an argument as to why the agency should allow the testimony or release the documents that corresponds to the factors the agency is supposed to consider in making its decision; and (c) a deadline for their response.

3. Serve the subpoena and the letter on the appropriate official.

What happens if the agency denies your request? Or never responds?
Stay tuned . . . .
----Branden Bell

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