SUBPOENA

Arthur Andersen LLP was convicted of witness tampering under 18 U.S.C. § 1512(b). The 5th Circuit upheld the conviction, despite Andersen's claims that prosecution did not enter evidence about the numerous documents Andersen did not destroy, that the judge allowed improper evidence of past SEC investigations of Andersen, and that the judge misrepresented the offense in the jury instructions with regards to actual knowledge that certain actions constituted a crime under the circumstances and timing of the commission of the actions. Andersen again challenges the conviction, this time before the U.S. Supreme Court.

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Lane is the former director of the Community Intensive Training for Youth Program (“CITY”) at Central Alabama Community College (“CACC”); Steve Franks is the former president of CACC. As director of CITY, Lane conducted an audit and discovered that state representative Susan Schmitz was on CITY’s payroll, but had not come to work at the office or performed any work outside the office for CITY. Lane terminated Schmitz’s employment after she refused to report to work. After Schmitz’s termination at CITY, the FBI investigated her for mail fraud and fraud concerning a program receiving federal funds. Lane was subpoenaed and testified at both of Schmitz’s criminal trials. Lane testified that Schmitz had not been reporting to work at CITY, and was only receiving paychecks. Following Schmitz’s criminal trials, Franks terminated Lane. Lane sued Franks in his official and individual capacities, alleging that Franks violated Lane’s First Amendment rights by terminating Lane in retaliation for testifying against Schmitz. The Eleventh Circuit affirmed the district court’s ruling that because Lane’s speech was made in his official capacity as CITY’s director, he failed to state a claim for retaliation. The Supreme Court’s decision will clarify the scope of the First Amendment as it relates to protecting testifying public employees from retaliation by their employers.

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When a federal district court makes a determination regarding whether to quash or enforce a subpoena, that decision is subject to appeal at the circuit court level. A circuit court can review a district court’s decision either deferentially or de novo. If a circuit court engages in deferential review, it will only overturn a district court’s decision if it determines that the district court abused its discretion in the matter. On the other hand, if a circuit court engages in de novo review, it will assess the factual evidence of the case and make a legal determination without regard for the findings by the court below. McLane Company, Inc. argues that a circuit court hearing an appeal from a district court’s decision to quash an Equal Employment Opportunity Commission (“EEOC”) subpoena should review the decision below deferentially. The EEOC argues, however, that a circuit court in that situation should instead review the decision de novo. The outcome of this case will impact the course of future EEOC litigation. 

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In December 2001, Argentina defaulted on its external debt payments. As a result, several bondholders agreed to debt restructurings with the country. However, NML Capital opted to file eleven different actions against Argentina in the Southern District of New York, with the district court ruling for NML in each action. Argentina has not satisfied any of the judgments, forcing NML to pursue Argentinian property located in the United States and abroad to try to attach and execute that property. NML subpoenaed two banks that are not parties to the litigation, seeking information about assets related to Argentina held at those banks. After the banks filed motions against the subpoenas, the district court ordered compliance with them and the Second Circuit affirmed, holding that the court directed the subpoenas at third-party banks seeking only discovery, not attachment or execution, and thus did not impinge on Argentina’s sovereignty. Argentina claims that these subpoenas violate long-standing protections of sovereign immunity. NML counters that the court ordered the subpoenas against non-litigating banks that fall outside sovereign immunity protection. The Supreme Court will now consider whether a court can compel discovery of all assets, regardless of location, of a sovereign state in a post-judgment proceeding that would help enforce the judgment against that state. This decision could affect diplomatic relations between the United States and countries that give reciprocal treatment of judicial decisions.

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The Supreme Court will determine whether a congressional committee may subpoena a third-party for the financial records of the President of the United States. The United States Courts of Appeals for the District of Columbia and the Second Circuit have both held that congressional committees did not exceed their constitutional authority when they issued subpoenas to President Donald Trump’s accountant and several banks for his personal financial records, because those subpoenas were related to legitimate legislative purposes. Petitioner President Trump argues that Congress may not issue subpoenas for the documents of a sitting President under the constitutional doctrine of separation of powers. Respondents, three Committees of the House of Representatives, argue that Congress has long exercised investigative power over the President as part of its legislative function. This case will likely affect the number and scope of future congressional subpoenas for a President’s personal records.

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