Many of my followers have asked me several related questions about subpoena enforcement when a witness refuses to comply with either a subpoena to testify[subpoena ad testificandum] or a subpoena to produce documents [subpoena duces tecum] Since I believe the House commission
2]investigating the Jan 6th insurrection has issued both types of subpoenas to Steve Bannon, I will use him as a concrete example to offer a simplified explanation about subpoena enforcement options. Lets start with the subpoena ordering Bannon to appear before the commission to
3]answer the members' questions. Bannon has a legal duty to appear before the committee but once he appears, he can and probably will assert his fifth am privilege not to respond to any govt question whose answer may incriminate him[this includes testimony to any fact that is not
4]incriminating itself but can be used by the govt as a link in a chain to some incriminating fact. While the govt could ask for a judicial inquiry into whether Bannon has a valid fifth am privilege to assert, in many situations like Bannon's, there will be no attempt by the Govt
5] to do so since it believes Bannon may well have criminal involvement in a criminal conspiracy to keep Trump in power. At this point, the govt does have the option of granting immunity to Bannon which negates a. valid assertion of the privilege because the immunity granted will
6] prevent the govt from using the immunized testimony and any other facts the govt derives from that testimony in a future criminal prosecaution against Bannon at either the federal or state level.However, even if immunity were granted to Bannon, his testimony can be used
7]against other Indvs like Trump if he were to be prosecuted by either federal or state authorities. If the govt declines to offer immunity after Bannon's valid assertion of his fifth am privilege, Bannon does not have to testify.
7]criminal prosecution against the immunized witness. However, even if immunity were granted to Bannon, his testimony can be used against other Indvs like Trump if he were to be prosecuted by either federal or state authorities. If the govt declines to offer immunity after the
8]witness validly asserts his fifth aim privilege, then Bannon does not have to testify. Now lets turn to the subpoena duces tecum ordering Bannon to produce documents in his possession or control that the govt wishes to inspect and perhaps use in some future legal
9] against Bannon and/or other alleged co conspirators. Explaining the very complicated and nuanced legal analysis used to determine whether anyone has a valid 5th am privilege not to produce the documents is beyond the scope of what I can explain to any lay audience. My law
10]students frequently have great difficulty understanding and applying these legal doctrines. However, there are certain general propositions I can offer as a valid 5th am privilege not to produce the documents is beyond the scope of what I can explain to any lay person. Indeed,
11]many of my law students frequently have great difficulty understanding and applying these legal doctrines. However, there are certain general propositions I can offer here. Generally speaking, it is far harder for a person to establish a valid fifth am privilege to not produce
12]the documents requested because any incriminating content in such documents are not directly protected anymore by the fifth am privilege because the Govt did not compel their creation.That is why Bannon's attys are left with the ludicrous claim that Bannon has an "executive
13]privilege" not to produce them. Silly because he was not working for the President in the executive branch at the time he created or came in possession of the documents the Govt is asking him to produce. If Bannon has no valid legal excuse for not complying with the subpoena
14]duces tecum but still refuses to produce him, he can be held in contempt for his failure to comply with the subpoena. Civil contempt would lead to his immediate incarceration until that time he decides to comply with the subpoena. If you find this thread helpful, please
15] retweet it to any of your followers who have some interest in the legal doctrine applying to subpoenas. Professor Peter Arenella UCLA Law
16] fn to this thread which I wrote before the House comm instituted criminal contempt proceedings against Bannon. While this thread explained why Bannon had no legal privilege to resist compliance, I focused on a civil contempt sanction. Using criminal contempt is even better
17] because it will lead to Bannon's incarceration more quickly and serve as a deterrent to other witnesses who falsely believe they can get away cost free for their non-compliance.
18]My sincere apologies for the confusing partial repetition of segments 7 and 8 of thread. I did review and edit the thread before posting it but apparently the repetition that I thought had been cut out was not omitted. Hopefully, you can skip the repetition and still follow
19] the remaining segments following my shameful screwup. Very embarrassing

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More from @arenella1

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My WEKLY Media Complaint: the Irrelevance of Opinion Polls Measuring Potus Favorability Ratings: Sadly, most Americans pay scant attention to the nitty gritty of public policy decisions. At best, they read headlines or watch the initial headline segment of network news shows.
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1]My colleague and good friend Kim Crenshaw has written an important essay in the New Republic that I am hoping you will share with your followers. Here is her conclusion: "These facts point us toward a troubling but essential fact: that the behavior of police inthe United States
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16 Jul 20
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