Grand Jury 101: What Are They, What Do They Do And What Happens If You Defy A Subpoena?
March 6, 2018

Let's have a crash course on "Grand Jury 101: What they are, what they do and what happens if you violate a subpoena?"

Only a Grand Jury can indict, meaning Robert Mueller cannot do it by himself. So the normal process is to conduct an informal interview, then request documents and potentially a Grand Jury hearing where a witness testifies (without the benefit of having an attorney in the room). The main reason a Grand Jury is assembled is to review evidence presented to determine if charges are probable. A grand jury has to power to secure a court order to subpoena evidence.

There are 2 kinds of Grand Jury subpoenas:

1. Subpoena ad testificandum – just testimony.
2. Subpoena duces tecum – testimony and evidence (ie documents)

In this case, Mueller conducted the informal interview a week ago and Sam Nunberg said he was happy to comply. A few days later, he received a subpoena requesting that he submit all emails, texts, etc from November 1, 2015 to present between himself and the following people:

Carter Page
Corey Lewandowski
Donald Trump
Hope Hicks
Keith Schiller
Michael Cohen
Paul Manafort
Rick Gates
Roger Stone
Steve Bannon

Nunberg stated that he was ordered to produce these documents by Monday, March 5th at 3pm, a deadline that he failed to meet.

So what happens when you get a Grand Jury subpoena? You can do three things: comply, try to fight it or refuse to comply and risk being held in contempt of court.

If you comply, you must fully provide all information requested and you must testify on the date and time on the subpoenaed. Show up, bring your documents, tapes, etc and answer all questions honestly.

If you do not want to comply, you can attempt to "quash" the subpoena on one of two grounds: (1) proving that complying would violate your First Amendment rights or because it violates constitutional privilege or (2) because what is is asking is “unreasonable or oppressive.” This is usually when you are asked to produce an overly burdensome and broad list of documents in a short period of time. In this case, the Court could modify the scope of the subpoena.

If you flat out refuse to comply, things get tricky. In the most extreme case, the prosecutor could ask the Court to hold you in "Civil Contempt." Civil contempt is a forceful way of getting you to comply with what the Grand Jury wants you to do. If you do not do it, you could be incarcerated until you agree to comply (see Susan McDougal).

So what will Mueller do if Nunberg really does fail to comply with the subpoena? There is some disagreement in the legal world. Dan Abrams does not believe Mueller can do anything. Lawfare Blog disagrees.

Mueller holds all the cards and there is no way to predict exactly what he will do. As it stands right now, Nunberg missed the 3pm deadline for document production. His Grand Jury hearing is set for this Friday. Let's see if he shows up or not. Mueller has wide latitude and lots of power to compel a witness to appear, testify and produce documents, as requested. Failure to comply may seem "funny" to Sam Nunberg now, but I suspect he won't be laughing if he ends up in handcuffs.

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