When you desire a subpoena from the DOD IG, prepare a request covering the five following areas:
1. Background of the investigation.
2. The reasons justifying the request.
3. Description of the documents.
4. The date and time for turning over the documents.
5. Evidence (if any) that the subpoena will be challenged.
When you describe the documents (number 3 above) be as specific as you can. Although the
courts will allow considerable leeway, a challenge can be made based upon unreasonableness. Also,
this may save you from examining irrelevant documents. Include in the justification (number 2 above)
both your reasons why the documents are needed and why a subpoena (rather than some other means
of access, e.g., consent) is necessary. Examples of a request for a subpoena, the subpoena itself, a
privacy act statement, and the cover letter for the subpoena may be found in Figures 57-60, Appendix
N, CIDR 195-1, dated 1 Nov 86.
Do not be concerned over possible Posse Comitatus violations here; the Act itself (section 8(g))
states that Posse Comitatus does not apply to audits and investigations by the DOD IG.
As stated above, the courts will interpret the statute broadly. As long as four criteria are met, the
courts will enforce an administrative subpoena. The four criteria are:
a. Is the investigation for a legitimate purpose?
b. Is the inquiry relevant to the legitimate purpose?
c. Is the information sought in the possession of others than the agency?
d. Were the required administrative steps followed?
If all of the above are met, the courts will enforce the subpoena. U.S. v. Powell, 13 L.Ed 2d 112.
(1964). The courts will step in only when the subpoena is so unrelated to the inquiry that it amounts to
exceeding the investigatory power. U.S. v. Morton Salt Co. 94 L.Ed 401 (1950). This means that the
standard for issuing the subpoena is not as high as probable cause; it is a standard of reasonableness
and relevance.
D. Grand Jury Subpoena: Federal Rule of Criminal Procedure 41.
The grand jury is an investigative body or tool of the U.S. Attorney. The grand jury has broad
investigative authority, so it (like the IG) has broad
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