Recently, the Department of Justice asked a federal court to hold former President Donald Trump in contempt for failing to comply fully with a grand jury subpoena demanding that he return all classified documents he took when he left office. The reporting on this issue is a little vague since DOJ filed the request under seal. But, according to news reports, DOJ asked the court to issue a contempt finding “if no one from Mr. Trump’s office agreed to state under oath that, to the best of their knowledge, all of the classified materials he took from the White House when he left office last year have been returned to the government.”
One problem with this investigation is it occasionally forces me to agree with Donald Trump’s legal team. Grrrrr.
I haven’t read DOJ’s brief but it sounds like DOJ wants someone from Mr. Trump’s legal team (or Mr. Trump himself) to sign a certification that all documents requested by the subpoena have now been returned to the government.
Is This a Typical Request?
In my experience, DOJ does not request a certification of compliance with most subpoena responses. A typical grand jury subpoena for documents will often include only a “business records certification.” This is not a certification that all documents have been produced but rather that the documents produced are the producing entity’s business records. This certification makes it easier to use the records at trial since, in theory, it satisfies an exception to the rule against hearsay.
I have had agencies other than DOJ include a requested “Certification of Compliance” with a subpoena. It says something like, “I hereby certify that the enclosed records and/or documents are complete and authentic copies of the requested records in full compliance with the above-referenced subpoena.” The agency’s lawyer will tell me that failure to sign the certification means we have not fully complied with the subpoena.
(More below about how I handle this type of request.)
Now, I have only seen these certifications in situations not involving classified documents. They are subpoenas for emails, texts, and so forth—the type of documents that are typically responsive to a subpoena.
The classified document situation in Mr. Trump’s case is unique because mere possession of the documents is a potential crime and because continued possession of classified documents creates a potential risk. To take an extreme example, a person who takes classified documents could share with them a foreign enemy. The government really wants to know that Mr. Trump has returned all the classified documents for reasons other than the subpoena at issue.
That said, I doubt the government was surprised that Mr. Trump did not sign the certification. And I have very little doubt that DOJ thinks that a certification that said all documents have been returned is false. Whomever signs such a certification could very well be making a false statement under oath. A felony. . . ahem.
The (Really) Obvious Problem with a Certification of Compliance
I’m curious to read DOJ’s brief asking to hold Mr. Trump in contempt because there is a very obvious problem with the government requiring someone to sign a certificate of compliance: it is the equivalent of asking someone to answer the question, “did you comply with the subpoena?” The government can compel someone to answer questions through a subpoena for testimony—before a grand jury or at trial. A subpoena for documents is not a subpoena for testimony.
DOJ has an active grand jury in this matter, and it could subpoena Mr. Trump to come answer that question but he would almost certainly take the Fifth and refuse to answer it. In theory, DOJ could subpoena members of his legal team to answer the question but that raises thorny attorney-client privilege issues.
The judge in this matter refused to grant DOJ’s request for a finding of contempt and apparently told the parties to try to work out a solution. That was almost certainly the right call here, since DOJ did not have the authority to require someone to sign a certification under oath.
What Could Happen If Your Client Signs a Certification
If your client signs a certification, and it turns out that not all responsive documents were produced, then your client faces a possible criminal charge for false statement or obstruction of justice. DOJ would have to believe that the failure to produce all of the responsive documents was intentional rather than inadvertent, but DOJ can use the leverage of these potential charges to great effect.
To be clear, responding to a subpoena for a company can be a complicated process. There are a million ways the process can be flawed.
Let’s say a client receives a subpoena for all documents related to a possible merger nicknamed Project Chesapeake. You need to gather documents from all “custodians,” meaning the people who could potentially have documents about Project Chesapeake. What if you miss a custodian? Perhaps a low-level accountant worked on the deal, and you didn’t realize it or your client contact forgot about that person’s role in the deal. As a result, you don’t collect documents from the accountant. In theory, your client has now failed to produce all responsive documents to the subpoena. Signing a certification saying you have fully complied would be false.
Or what if you are told the negotiations for Project Chesapeake began in March 2019, so you search for documents beginning January 1, 2019, just to be safe. It turns out there were some early email communications in December 2018 about the deal. You don’t collect emails that far back in time and thus your client has failed to produce all responsive documents to the subpoena. The certification of compliance would be false.
Both of these examples could be the result of inadvertent error. However, an aggressive prosecutor could view either of them as intentional efforts to conceal documents. That is why signing a certification with a blanket statement that the client is “in full compliance” with the subpoena is a dangerous proposition.
What Could Happen If Your Client Doesn’t Sign
There are also dangers if you client doesn’t sign a requested certification. First, the refusal could encourage the government to file a motion to compel compliance in court. This is a motion asking the court to order the subpoena recipient to comply. I think most judges would deny a motion to require a sworn certification, but this process is expensive for the client since its lawyers have file a response, go to court to argue it, and so forth.
In a criminal case, a refusal to sign could give DOJ the (unwarranted) suspicion that your client is hiding documents. In an extreme circumstances, the prosecutors could try to get a search warrant to conduct a search of your client’s office or home. (Of course, in the Trump example, there has already been a search warrant; it’s unusual to have a search warrant and then a subpoena, but there are many reasons why the Trump case is unusual.)
Finally, as DOJ did for Mr. Trump, DOJ could go to court and seek a finding of criminal contempt, which can result in a fine or even jail time (this would be extremely unlikely). Responding to a motion seeking a finding of contempt is equally expensive for the client. But even in the Trump example, the judge was reluctant to do so.
Some Thoughts about Responding to a Request for Certification
For starters, the lawyer should not sign a certification of the client’s search for documents. Unless I personally took every step involved in the process of collecting and producing documents, then I cannot know everything that was done and it’s impossible (and risky) to sign it.
It is very typical for counsel to have conversations with the government about how the search was conducted, what custodians’ records were searched, thet time frame for the search, what search terms were used and so forth. But having a conversation about the search process is a very different matter than signing a certification under oath.
I also generally decline to have my client sign a certification of compliance, at least one that says that the response is in “full compliance” with the subpoena. More likely, I will write a letter to the prosecutor explaining that as described during our calls, we have completed our search and have produced all documents located through this good faith search.
If the agency really pushes back and my client wants to be cooperative, then I have rewritten the certification language to say that the response is complete after a “reasonable, good-faith search of documents known to be responsive at the time of the response” or something like that. Those caveats make it extremely difficult for the government to later say that the certification was false if it turns out some documents are not produced. You could also consider defining in the certification how the search was conducted and then your client would certify that all documents resulting from the defined search have bene produced to the best of your client’s knowledge.
No matter what happens, you need to explain to your client the dangers of signing a certification that could later turn out to be incorrect. The best bet is not to sign at all.