You Just Received an FBI Subpoena – Now What?
What is the FBI and What Does It Investigate?
The Federal Bureau of Investigation (“FBI”) is a U.S. federal agency charged with the responsibility to defend the United States from external threats and uphold the criminal justice system. With over 30,000 agents, analysts, and other professionals, it holds both intelligence and law enforcement responsibilities to protect the United States and society from various crimes.
The FBI’s authority is broad and vast. Under its purview, the FBI is the main federal agency that investigates terrorism threats, counterintelligence, cyber-crime, public corruption, civil rights, organized crime, white-collar crime, violent crime, and weapons of mass destruction (“WMD”).
Increased Investigative and Prosecutorial Efforts from the Coronavirus
The coronavirus has substantially heightened the investigative tactics used by the FBI to uncover COVID-related crimes. Such crimes include online exploitation especially of children, hackers and scammers, and hate crimes and civil rights violations. The most pernicious COVID-related crime has been the persistent use by criminals to steal money, sell fraudulent testing kits and vaccines, and access individuals' personal bank accounts. The FBI has taken a stern zero-tolerance policy with respect to investigating and prosecuting individuals for profiting from the coronavirus and has established a COVID-19 Working Group to combat the increase in criminal activity during this crisis. Below are some prominent warnings issued by the FBI:
October 14, 2020: The FBI sent an urgent warning to Americans that scammers are fraudulently soliciting donations and charity operations that seek to obtain individuals' money and personal information under the guide of helping people and areas affected by COVID-19.
July 6, 2020: The FBI has reported a spike in unemployment insurance claims that involved the use of stolen personally identifiable information ("PPI").
June 26, 2020: The FBI reiterated its warning that scammers are using false marketing strategies to sell unapproved or fraudulent COVID-19 antibody tests that may provide false results.
Other federal agencies have taken similar positions. The Department of Justice (“DOJ”) remains vigilant in "detecting, investigating, and prosecuting wrongdoing related to the crisis" and will not hesitate to prosecute individuals who seek to profit from societal fear. The Securities and Exchange Commission (“SEC”) has likewise stated that it is focused on maintaining the continuity of its operations, monitoring markets, providing needed relief to issuers, and increasing its enforcement and investor protection efforts.
Discerning Key Information from Your Subpoena
As mentioned above, the FBI’s investigative power is significantly broad. This is purposefully done to give the agency the leeway it needs to make subjective decisions through its large arsenal of investigative tools. In addition to the search warrant, one of the primary tools relied upon by the FBI in conducting its investigations is the subpoena. There are two types of subpoenas that you could receive from the FBI: (1) subpoena ad testificandum—which requires you to provide testimony at a specified time and date; and (2) subpoena duces tecum—which requires you to produce certain specified documents.
Ascertaining the details of a subpoena is a critical step when dealing with FBI investigations. Once you receive an FBI subpoena, it is important to discern what the FBI is investigating; whether you are more likely deemed a witness, suspect, or target; whether the investigation is civil, criminal, or both; and what to do next, as some key first questions.
The subpoena likely does not mention the offenses for which the FBI is investigating, nor does it mention whether the individual named in the subpoena is a target, suspect, or a mere witness. This makes matters ever more challenging and apprehensive. An attorney is trained to spot the likely allegations pursued in an FBI subpoena.
“It is critical that individuals understand the importance of acting promptly and appropriately in hiring an attorney to handle their FBI subpoena request. Once we are able to ascertain—either from the text of the subpoena or via communications with the FBI—whether the investigation is civil or criminal and what the allegations entail, we can then craft our defense. This is important because different offenses alleged within the subpoena require different defense strategies.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.
What to Do After You’ve Received a Subpoena from the FBI
Receiving a subpoena from the FBI can be stressful. You may be confused about all the document requests, concerned about the future of your business, and left in an uncertain mental state. Do not make the mistake of thinking that the investigation or FBI subpoena will go away on its own. The FBI is legally entitled to file a motion to compel or have you held in contempt—which can include substantial penalties and jail time—for refusing to comply with the terms of your subpoena. There are three important steps you can take after receiving a subpoena: (1) hire a defense attorney; (2) do not disclose any information to anyone; and (3) start accumulating the requested documentation.
First and foremost, it is important to hire a team of defense attorneys experienced in handling FBI investigations and the subpoena process. This is important not only so your attorney can work towards a favorable end result but also because certain document requests may be privileged. It is sometimes challenging to determine which documents are privileged and which are not. An attorney can guide you through this process. An attorney can also assist you with any challenges to your subpoena. Some subpoenas are vague, overly broad, and require that an attorney file a motion to quash certain requests.
Second, it is critical that you do not speak with any FBI agents or other members of law enforcement about your pending investigation. You may inadvertently disclose privileged details, documents that contain self-incriminating material, or information that falls within the attorney-client privilege. In such cases, the government can use this material against you.
Last, start accumulating the requested documents that the FBI is demanding. This will save your defense attorney time, which they can then use to determine whether any of your documents should be privileged. Do not destroy or conceal evidence, as this can impair your credibility and undermine your entire case. Cooperation and honesty are the keys when communicating with federal agencies.
In all cases after receiving a subpoena from the FBI, get in touch with an experienced attorney as soon as possible so they can start preparing your individualized defense, communicating with the FBI, and safeguarding your career and reputation.