I imagine that word—or else a prolonged stunned silence—was the response of many attorneys and non-attorneys alike when former Trump campaign aide Sam Nunberg announced in a series of bizarre interviews today that he planned to ignore a grand jury subpoena from the Special Counsel’s office. Nunberg then dared the government to arrest him for his refusal to cooperate.
As far as strategies go, Nunberg’s is all kinds of terrible. As others have described, you can be jailed for contempt for defying a grand jury subpoena, and subpoenaed witnesses in past investigations of presidents have faced such consequences.
Mr. Nunberg did raise an interesting point in an interview with CNN’s Jake Tapper, asking whether he should have to spend “80 hours” looking for every email he had sent to other campaign advisers since November 2015, complaining that he had exchanged many emails per day with some of those people. Grand jury subpoenas to produce documents can be a pain. Below are some tips to try to reduce costs.
Ask the prosecutor to narrow the scope of the subpoena.
Nunberg asked Jake Tapper whether he should be expected to spend inordinate time responding to all the document demands in the subpoena. With all due respect to the delightful (and wise) Mr. Tapper, perhaps that question should have been better directed to the prosecutor who sent the subpoena.
If you think that complying with a grand jury subpoena will impose a substantial burden, your lawyer can call the prosecutor who issued it and explain the issue. These phone calls can potentially accomplish a few things, such as:
- Getting an extension of time to respond to the subpoena;
- Getting agreement that you can produce documents on a rolling basis; or
- Getting government agreement to limitations on the subpoena, such as a shorter time frame for responsive documents, substantive limitations to focus on the documents most important to the investigation, or even agreed-upon search terms for responsive documents
A prosecutor may not agree with these requests, but many will do so if you make a persuasive argument, especially if the prosecutor thinks of you and your lawyer as straight shooters.
Pro tip: the cover letters accompanying grand jury subpoenas nearly all include a request that you keep the subpoena confidential. With the exception of certain categories of subpoenas such as national security letters, these requests for confidentiality are not binding, but respecting them can build trust with the prosecutor. Giving interviews about the substance of the subpoena you received to a string of media outlets while vowing to disobey its demands (like Nunberg) is a sub-optimal plan to get the government on your side.
Think about the most efficient way to search for and review responsive documents.
There are many ways to search for responsive documents. Sometimes the best way is indeed, as Nunberg lamented, for the recipient to spend hours on end collecting them, either manually or through the use of search terms. Other times, either an attorney or a document vendor retained by an attorney can remotely collect the relevant files and search for all potentially responsive documents.
The traditional review method is essentially the same as e-discovery in other litigation contexts: lawyers look at each potentially responsive document to assess whether it’s responsive to the grand jury subpoena and, if so, whether it should be withheld on the basis of some privilege. For sensitive cases (as federal criminal investigations usually are), this tends to be the preferred method if a client can afford it.
Sometimes, however, that simply isn’t possible. Sometimes, resources may be sharply limited and you may be confident that there is nothing to be worried about in the documents. In those limited circumstances, especially where the government has assured you that it considers you a witness rather than a subject of investigation, it may be okay to search your potentially responsive documents for terms that would indicate that they could be privileged, and perform an individualized review of just those potentially privileged documents. Any documents that do not contain a privilege term would then be produced to the government without being reviewed first. This approach has risks, and defense attorneys don’t like doing it. For one, it’s generally a good idea for your lawyer to know the content of documents that you turn over to the government: a lawyer may see potential exposure where you do not. For another, even if you’ve got nothing to worry about, you may have obligations to safeguard the privacy or confidentiality of third parties with whom you’ve corresponded. Nevertheless, in the right circumstances, this can be a viable approach.
If all else fails, you can move to quash the subpoena.
Courts maintain significant authority to control or supervise grand jury subpoenas. That includes limiting their scope or, in rare circumstances, quashing them altogether. If the government’s demands are truly oppressive and designed to harass, you can ask the court in which the grand jury is impaneled for relief.
But don’t pull a Nunberg. You’ll have made a huge mistake.