In the United States, subpoenas can be issued by court clerks, by attorneys admitted to practice in the issuing court, by grand juries (through the prosecutors who staff them), by a number of federal and state agencies acting under their own statutes, and by Congress. Each draws its authority from a different source, and the rules for issuing, serving, and enforcing a subpoena shift depending on which of those actors is behind it.
Court Clerks
The clerk of court is the formal issuer behind most subpoenas in federal litigation. Under Federal Rule of Civil Procedure 45, the clerk must issue a subpoena, signed but otherwise blank, to any party who asks for one. The requesting party fills in the details before serving it, and the subpoena must come from the court where the lawsuit is pending.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45
Criminal cases follow the same pattern through a different rule. Under Federal Rule of Criminal Procedure 17, the clerk issues the subpoena under the seal of the court, signed and sealed but otherwise blank, to the requesting party. A United States magistrate judge can also issue subpoenas for proceedings before that judge.2Office of the Law Revision Counsel. Federal Rules of Criminal Procedure Rule 17 – Subpoena
Attorneys
In practice, most civil subpoenas never pass through the clerk’s hands at all. Rule 45 allows any attorney authorized to practice in the issuing court to sign and issue a subpoena directly.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 This is the workhorse mechanism in civil litigation. During discovery, lawyers routinely issue subpoenas to depose witnesses or obtain documents from people and organizations that aren’t parties to the lawsuit.
Criminal defense attorneys use the clerk-issued process under Rule 17 instead. If a defendant can’t afford to pay the costs of compelling a witness, the court can order the witness to appear at government expense, so that the constitutional right to present a defense isn’t just theoretical.2Office of the Law Revision Counsel. Federal Rules of Criminal Procedure Rule 17 – Subpoena
Whether a subpoena is signed by a clerk or by an attorney, it carries the same weight. An attorney-issued subpoena is backed by the full authority of the court, and ignoring it has the same consequences.
Grand Juries
Grand juries investigate potential crimes and decide whether to bring formal charges. As part of that function, they can compel witnesses to appear and testify and demand the production of documents. The Supreme Court has long recognized that, as a general rule, the law is entitled to everyone’s evidence, and grand jury witnesses have few grounds to refuse to appear.3Congressional Research Service. The Federal Grand Jury
Prosecutors handle the paperwork, issuing these subpoenas on the grand jury’s behalf. Proceedings are secret. Federal Rule of Criminal Procedure 6(e) restricts who may disclose what happens inside the grand jury room, binding grand jurors, interpreters, court reporters, government attorneys, and anyone who receives an authorized disclosure.4Legal Information Institute. Federal Rules of Criminal Procedure Rule 6 – The Grand Jury That secrecy protects both the investigation and the reputation of people who are investigated but never charged.
Federal Agencies
Several federal agencies can issue subpoenas (sometimes called “summonses”) under their own statutory authority, without a court’s involvement at the outset. These administrative subpoenas are the standard tool for regulatory investigations and enforcement.
- The Internal Revenue Service can summon any person to appear, produce books and records, and give testimony under oath when investigating tax liability or the correctness of a return.5Office of the Law Revision Counsel. 26 USC 7602 – Examination of Books and Witnesses
- The Securities and Exchange Commission, for any investigation under the securities laws, can have its commissioners or designated officers administer oaths, subpoena witnesses, compel attendance, and require the production of relevant books, papers, and records from anywhere in the United States.6Office of the Law Revision Counsel. 15 USC 78u – Investigations and Actions
- The Federal Trade Commission can require witness attendance, testimony, and document production in any matter under investigation. Any FTC commissioner can sign subpoenas, and FTC examiners can administer oaths and take evidence.7Office of the Law Revision Counsel. 15 USC 49 – Documentary Evidence, Depositions, Witnesses
State agencies, particularly licensing boards and state attorneys general, often hold similar powers under state statutes. The enforcement path for an administrative subpoena is different from a court subpoena: if you don’t comply, the agency typically has to go to court and get a judicial order before contempt penalties are on the table. The FTC statute explicitly says the Commission “may invoke the aid of any court” when a subpoena is disobeyed.7Office of the Law Revision Counsel. 15 USC 49 – Documentary Evidence, Depositions, Witnesses
Congress
Congress has its own subpoena power, rooted in the Necessary and Proper Clause. The Supreme Court has recognized that the power to investigate through compulsory process is an indispensable ingredient of lawmaking, at least when the investigation furthers a legitimate legislative task.8Constitution Annotated. Article I, Section 8, Clause 18 – Congress’s Investigatory Powers Generally Committees issue subpoenas regularly during oversight hearings and investigations, compelling current and former officials, business executives, and other witnesses to testify or produce records.
Enforcing a congressional subpoena is where things get complicated. Congress has three options. It can use its inherent contempt power to detain a noncompliant person until they cooperate, though that tool hasn’t been used in decades. It can certify a contempt citation to the Department of Justice for criminal prosecution. Or it can file a civil lawsuit asking a federal court to order compliance.9Congressional Research Service. Congress’s Contempt Power and the Enforcement of Congressional Subpoenas In practice, enforcement against executive branch officials who claim executive privilege is notoriously slow. The DOJ has historically declined to prosecute executive officials for criminal contempt, and civil enforcement cases can drag on for years.
If You’ve Received a Subpoena
Whoever signed it, a subpoena is a court-backed order, not an invitation. Under Rule 45(g), the court where compliance is required can hold in contempt any person who has been properly served and fails without adequate excuse to obey.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 That can mean monetary sanctions, an order to pay the other side’s attorney’s fees, and in extreme cases jail time until you comply. An administrative subpoena from the IRS, SEC, or FTC follows a slower path because the agency has to petition a court for an enforcement order first, but once the court issues that order, noncompliance is contempt of court like any other.
If a subpoena looks overbroad, burdensome, or seeks privileged material, you can file a motion to quash or modify it in the court where compliance is required. The one thing not to do is nothing. Legitimate privilege is an adequate excuse under the rules, but it has to be raised formally; courts have little patience for silence followed by a privilege claim after a contempt motion lands.