Rules, Subpoenas, and Why They Matter
Fall is making its presence known here on the Cape. The trees have finally been changing colors, the air is cool and crisp, and since last week, the dark descends early. I just got back from a brisk three-mile walk, and landed on a streamed recording of Dave Grusin playing “On Golden Pond,” which somehow fits the mood of the day.
It all seems quite orderly, doesn’t it? The seasons change as and more or less when they are supposed to; the days get shorter or longer, depending on your hemisphere, right on schedule; and even jazz adheres to fundamental rules of tempo and melody. The world and our lives are not always predictable, but when they are, we derive comfort from them.
The same holds true for societal rules. For example, the rules for driving. As long as drivers stay in their lanes, obey speed limits (again, more or less), and stop for red lights, traffic flows smoothly. Deviation from the rules of the road can hurt and even kill.
Sports also have rules – some made for safety, most made for the orderly conduct and integrity of the games. A team or team member who breaks the rules, like Pete Rose when he bet on baseball games while still in baseball, or members of the Houston Astros organization who participated in the 2017 sign stealing scandal, can be and sometimes are penalized if caught cheating. In such cases, rules aren’t made to be broken, they’re made to be followed and, when necessary, enforced.
I worry that we are witnessing today a contempt for rules that is unprecedented in our nation’s history. We’ve seen it in Washington in recent weeks, as at least two witnesses close to the former President have chosen not to show up when subpoenaed, and one now has been indicted for criminal contempt. We also see it in our daily lives, such as in the very common non-compliance with rules designed to prevent the spread of COVID. And whether the rules are designed to protect our democracy or our health, the brazenness with which some of us choose not to follow them marks a breakdown in the social order that runs deep and threatens grave consequences.
There was a time when Americans took rules more seriously, whether they were rules of law, of religion, or of morality. The Greatest Generation, by and large, were rule followers. They lived by a generally accepted code of honor, which included obeying the law and responding to their country’s call.
My generation, the Baby Boomers, on the other hand, led a rules rebellion. The sexual revolution, the disenchantment with organized religion, the civil rights and anti-war movements, the drug culture — all of these phenomena of the 1960s and early 1970s represented a massive and often organized resistance to written and unwritten rules. What was commonly referred to as the “generation gap” was characterized by this break from both the mindset and the rules established by our parents.
Culturally, the rules rebellion was glorified extensively in film and song, articulated most clearly in the Bob Dylan classic, “The Times They Are a Changin’.” The Woodstock concert in 1969 was characterized as much by a rejection of a prior generation’s rules as it was by the music that was performed. And while many of the rules needed to be challenged, such as laws that permitted racial segregation and rules that promoted gender discrimination, our parents couldn’t always understand why we would break with their conventions. To many young people at the time, the only rule was “if it feels good, do it.”
And yet, as the ‘60s gave way to the ‘70s, it became clear that some rules were sacrosanct even to us Boomers. When the Watergate investigation revealed that President Nixon broke the rules (and the law), members of his own party convinced him to resign. The same young people who went along with the rebellions of the prior decade were delighted at this early 1970s turn of events, even if it was the generation before ours that brought it about. Fast forward to the 1990s, and many of us were equally gratified when a sexual scandal did not result in President Clinton’s removal from office. Then, we distinguished between rules of public and private morality, still ready to punish transgressions of the former but, unlike our parents, not caring so much about the latter.
Fast forward again to the last two years. When the immediate past President was twice impeached for violations of his public duties, members of his party let him off the hook. True, party leaders drew the line when he falsely claimed to have won the 2020 election, but short of that there was nothing he couldn’t get away with. And now his sycophants, perhaps emboldened by the mob that broke myriad laws, rules, and accepted behaviors in their violent, deadly assault on the Capitol, are following his lead. Even public morality doesn’t seem to matter to them any more.
It would be overly simplistic to think that our national divisions of the past and present can be explained entirely by generational divides. The divisions have also been cultural and political, and may be dictated as much or more by where we live and how we identify as by when we were born. But we have never witnessed in my lifetime the type of utter disregard for rules of public integrity and civic duty as we have seen from certain quarters these last few years.
And so, I return to the flagrant disregard of subpoenas and the disdain for our system of laws that it represents. Subpoenas are the tools available to Congress and the courts for compelling the disclosure of information that otherwise would remain hidden. They are the instruments that allow the sun to shine on words and deeds shrouded in shadow. Without subpoenas, the evidence of many crimes, including assaults on our constitution, would never come to light, and the perpetrators of those crimes would evade accountability. It was a subpoena, after all, and the courts’ endorsement of it, that brought down Richard Nixon, and rightly so.
Subpoenas only work when their recipients comply with them. Compliance can mean showing up to give testimony at a deposition, a trial, or some other proceeding, or producing documents that the subpoena requests. The person served with the subpoena may have legitimate defenses to having to testify or to produce documents, and is free to assert those defenses and let the courts decide whether they have merit. What the recipient of a subpoena is not allowed to do is just ignore it.
No lawyer worth their salt would advise their client to ignore a properly served subpoena. Doing so would subject the person served to legal penalties for civil or criminal contempt, including jail time. Indeed, the very word “subpoena” is Latin for “under penalty.” As much as the potential witness might disagree with the reasons for the subpoena, choosing to ignore it is contemptuous in both the legal and lay meanings of the word. It challenges the established order and bespeaks a disregard for the rule of law. One ignores a subpoena at one’s peril.
There are times when certain rules should be broken to end an injustice. That’s called “civil disobedience,” and has been exemplified in recent American history by such heroic figures as Rosa Parks and Rev. Martin Luther King, Jr. But the contemptuous disregard of rules that are indispensable to the proper functioning of a just and free society must not be tolerated absent some compelling moral reason. None is present here.
In 2020, the rules that protect our democracy held up, but they remain under a continuing and aggressive attack. I think it’s safe to predict that, for now at least, the subpoenas at issue will be enforced. One can only hope that the walls of justice will continue to stand up against the relentless onslaught of those who, for their own inimical purposes, would tear them down.