How to Respond to a Federal Investigation
A. Verbal Request for Interviews or Documents;
B. Letter Request for Documents or Information;
C. Subpoenas – Administrative and Judicial; and
D. Judicial Search Warrants
Summary: Know your rights so that you may maintain a professional attitude while
complying with all your legal obligations and duties, being careful not to obstruct a
lawful investigation.
A. Verbal Request for Interviews or Documents.
If law enforcement agents present themselves and ask for an interview or to be provided
with documents consider the following actions:
Verify identity of the agents;
Verify that this is a verbal request, and that the agents do not have a subpoena or search warrant;
Once certain that this is a verbal request only, tell the agents that you will need to discuss this request with your counsel first, before consenting to an interview or producing documents;
Note that those who work in your office may consent to an interview, may refuse to be interviewed, or may tell the agents that they will only be interviewed in the presence of counsel; and
Unless they are specifically authorized to do so, those who work in your office may not release documents.
B. Letter Request for Documents or Information.
Contact your counsel upon receipt of the letter; and
Do not respond to the letter or call the sender absent clear instruction from your counsel to do so.
C. Subpoenas – Administrative and Judicial.
Upon receipt of a subpoena in your office:
Do not respond directly to the subpoena;
If you are asked to sign for receipt of the subpoena, make a copy of the signed receipt and record the date of receipt. If you receive a subpoena via certified mail, make a copy of the return receipt after it is signed and dated with the date of receipt;
Forward the subpoena, any document evidencing receipt of the subpoena, and the envelope that contained the subpoena if the subpoena was served by mail, to counsel;
Discuss with your counsel whether and how to gather any responsive documents, but do not delay sending a copy of the subpoena itself while documents are being gathered. It is important to immediately send the subpoena to your counsel to ensure a timely response; and
Your counsel should handle future communications with the issuing authority and discuss decisions about the gathering of the subpoenaed documents with you. Your counsel will discuss with you whether any requested information is privileged or otherwise protected from disclosure, or if compliance would be “unreasonable” or “oppressive.” Counsel may as needed file a motion with the Court to quash or modify the subpoena.
D. Judicial Search Warrants.
If Federal Agents Arrive With a Search Warrant Signed by a Judge: Your role is to comply with the warrant while protecting staff and the institution.
STEP 1 — STAY CALM
Do:
✔ Be professional
✔ Be respectful
Do NOT:
✖ Argue
✖ Delay
STEP 2 — DO NOT INTERFERE
Never:
✖ Block access;
✖ Hide files;
✖ Shut down computers; or
✖ Move documents
This could be viewed as obstruction.
STEP 3 — CONTACT COUNSEL IMMEDIATELY
Call:
📞 Your Counsel
Do NOT refuse access while waiting for your counsel to answer or call back, as this could be construed as delaying.
STEP 4 — REQUEST BASIC INFORMATION
Politely ask for:
Lead agent’s name – Verify identification;
Agency (often the Federal Bureau of Investigation);
Lead prosecutor’s name and contact information; and
A copy of the search warrant – You are entitled to this, but you will likely not be presented with the affidavit submitted in support of the search warrant (see example).
The key aspect of a federal search warrant is the list of property to be seized. Review this right away and let your counsel know if seizure of any categories or items would violate state law.
A federal search warrant is typically issued to “any authorized law enforcement officer.” For a court-authorized template, see https://www.uscourts.gov/sites/default/files/ao093.pdf. If you learn that persons other than law enforcement officers will be involved in the search, let your counsel know so that your counsel can consider whether to challenge the presence of civilians during the execution of the warrant.
Your counsel can also move for the return of the property pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure. This type of motion is best filed shortly after the execution of the warrant. There may be a basis to file a motion before the seized evidence is removed from the premises. If, after review of the items to be seized, you believe that removal of certain items would violate state or federal law or would otherwise cause irreparable harm to the integrity of future elections, your counsel may consider immediate steps:
Contact the prosecutor to ask that the agents not remove certain items, and explain the concerns of the election official.
If the prosecutor does not agree, tell the prosecutor that you will be reaching out to the Magistrate Judge immediately, and ask if the prosecutor wants to join you on the call. In the event that you cannot connect with the prosecutor, document your attempt via email and voicemail.
Call chambers. Explain to the judicial assistant the exigency of the situation, that you advised or attempted to advise the prosecutor of your contact with the court, that you will be challenging the scope or manner of execution of the search warrant, that you will be filing a motion as soon as possible, and that you would like to get a hearing that day.
Remember that different jurisdictions have different processes. Ask the judicial assistant how your written papers should be filed, given that the search warrant case number will not be available to you for electronic filing using your PACER account. You might seek to email your filing, as part of the existing search warrant case number, directly to chambers. It is right to tell the agents that “Our counsel is being notified. We will cooperate with the warrant.”
STEP 5 — DO NOT IMMEDIATELY CONSENT TO SEARCHES BEYOND WHAT IS IN THE WARRANT
The Agents may ask you to consent to a broader search – You may say: “We will comply with the warrant but do not consent to any searches beyond its scope.”
While you may determine on advice of counsel that you wish to provide more materials at a later date, waiting to fully analyze your obligations under state and federal law and any privileges that may apply will protect your and your voters’ rights.
STEP 6 — EMPLOYEE GUIDANCE
If agents approach staff for an interview, staff may consent to an interview, may refuse to be interviewed, or may tell the agents that they will only be interviewed in the presence of counsel.
STEP 7 — ASSIGN AN OBSERVER
Ask the agents if you may designate a staff member who would:
Stay with agents;
Take notes;
Track areas searched; and
Track items taken.
Observe only — do not interfere.
The agents may decline that request – if so, please make note of your request, to whom you made the request, and the name of the agent that denied your request.
STEP 8 — PRIVILEGED MATERIALS
If agents seek or appear about to seize legal and privileged material:
Advise the agents of this fact (they may not know where legal files are or are not);
Ask that they not take the files until your counsel can verify whether they are privileged; and
If the agents decline that request, note the material seized, and the name of the agent with whom you spoke.
STEP 9 — BEFORE AGENTS LEAVE
Request:
Inventory of seized items; and
Copy of warrant (if not already received).
STEP 10 — AFTER AGENTS LEAVE
Immediately:
Preserve all remaining records; and
Suspend deletion policies.
Contact your counsel to let them know that the search has ended.
Consider whether, and if so, how, you will describe the events to the press and the public.
Remember that email communications sent during moments such as these can later be misinterpreted.
This document does not constitute legal advice and does not create an attorney client relationship between the drafters and any reader.
