JANUARY 20, 2015
D.C. federal Judge Emmet G. Sullivan recently issued a decision to stop the Department of Justice from “inviting” compliance in regards to court subpoenas, which will help limit prosecutorial overreach. The current practice, in which a person accepts the subpoena and brings the requested documents to the government directly, allows for the government to have pretrial discovery and leaves the defense unaware that the government has those documents. The government was assuming it could obtain subpoenaed documents immediately, but according to Judge Sullivan, the government cannot have pretrial production without having approval from the court first. This news is important as Judicial Watch is in the process of obtaining more government documents detailing the abusive IRS scandal in this judge’s court. You can read more about the latest developments of that FOIA lawsuit here.
This quote from Judge Sullivan, as stated in this New York Observer article, further explains the scope of this decision:
“Rule 17 does not authorize pretrial production without court approval. The government’s inability to provide legal support for its actions is telling: there is no support.” The judge recognized the “independent duty” of the court to review the propriety of subpoenas issued under its seal and subject to its sanctions. While the rule gives the court the ability to require production of documents “in court before trial,” it does not give that authority to the government.