Catch Me If You Can: Dan Snyder’s Tactics to Avoid a Congressional Subpoena

by Stephen Fox, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

The Washington Commanders football team has been plagued by controversy under the ownership of Dan Snyder.¹ From their stadium slowly collapsing, to changing the team’s name after sustained backlash for its racial insensitivity, the Commanders under Snyder’s reign have been the bane of the NFL for years.² Recently, U.S. Representative Carolyn Maloney, Chair of the Committee on Oversight and Reform, scheduled a hearing in June 2022 to investigate allegations of a toxic workplace and sexual harassment within the organization.³ The Oversight Committee wished to serve Snyder with a subpoena,⁴ requiring him to appear in front of the committee and answer questions under oath, but Snyder successfully avoided this subpoena by remaining on his yacht in the Mediterranean Sea.⁵

This article will give a brief description of the rules and regulations surrounding congressional subpoenas and the methods of serving them. Next, it will detail Snyder’s strategy to avoid subpoenas by remaining on his yacht in open water. Lastly, the article will conclude with a discussion on loopholes in serving subpoenas and potential avenues to close those loopholes.

II. Background

A. Congressional Subpoena Power

The House Rules for the 117th Congress permit House committees and subcommittees to require the attendance and testimony of witnesses through subpoenas.⁶ It is the duty of all United States citizens to cooperate with Congress in these fact-finding endeavors by responding to congressional subpoenas and respecting the committee and its members.⁷ Failure to respond to these subpoenas may result in the recipient being cited for contempt of Congress.⁸ Furthermore, those who are summoned before Congress to give testimony, but refuse to answer any pertinent questions, shall be guilty of a misdemeanor.⁹

However, being served a subpoena is not a prerequisite to testify in front of a House committee.¹⁰ Testimony may also be done under a voluntary basis.¹¹ By appearing voluntarily, the person testifying can choose which questions they answer from the committee.¹² Alternatively, if a person is testifying as a result of being served a subpoena, that person may be placed under oath by the committee chair and must answer all questions posed.¹³ There are also strict guidelines governing how congressional subpoenas must be serviced.¹⁴ First, these subpoenas must be served in person, directly to the recipient.¹⁵ Alternatively, if the intended recipient is unavailable, then their attorney may accept receipt of the subpoena.¹⁶

B. Avoiding Service: Dan Snyder’s Tactics

In October of 2021, Carolyn Maloney, the chairwoman of the House Oversight Committee, launched a probe into allegations of workplace misconduct in the Washington Commanders organization and how the NFL was investigating these claims.¹⁷ To further this probe, Maloney announced that she intended to subpoena Commanders owner Dan Snyder to appear and conduct a Committee deposition.¹⁸ However, after Maloney made this announcement, Snyder became unavailable to the Committee as he boarded his yacht and journeyed into the Mediterranean Sea.¹⁹ Although not ever explicitly stated by Snyder or his attorney, it is suspected that Snyder remained on his yacht during the negotiations that ensued with the Committee to avoid the possibility of being formally subpoenaed.²⁰

By remaining on his yacht, Snyder successfully deterred a subpoena in three different ways.²¹ First, by remaining outside of American jurisdiction, Snyder removed himself from the range of the U.S. Marshal service.²² U.S. Marshals are generally tasked with serving congressional subpoenas, but are prohibited from traveling to other countries to serve documents.²³ Secondly, by staying aboard his boat, Snyder made it logistically impossible to serve him the subpoena papers in person.²⁴ Sending someone to track Snyder’s yacht to an undisclosed location in the Mediterranean Sea, then to board the vessel and serve Snyder in person is a sizeable task that would divert valuable government resources. Lastly, Snyder’s attorney could have accepted the subpoena in his absence but refused to do so in this instance.²⁵

Ultimately, after negotiations between his legal team and members of the Committee, the two sides came to an agreement and Snyder appeared before the Committee virtually to give a voluntary deposition under oath, but he never accepted service of a subpoena.²⁶

III. Discussion

If Congress seeks to close the loophole allowing Snyder to avoid service, it may do so by implementing the electronic service of subpoenas. Courts in the United States have recognized modern technological advances and grown to accept electronic service under certain circumstances.²⁷ In Rio Props v. Rio International Interlink, the Ninth Circuit acknowledged that trial courts have grown to accept a larger means of service.²⁸ There, the Court found that alternative means of service, including even email, may satisfy the Supreme Court’s due process requirement, which mandates that each method of service must be “reasonably calculated” to alert the recipient of the action and allow them to present objections.²⁹ Congress could choose to follow the trend of American courts and acknowledge the technological advancements of our modern era by permitting electronic service when conventional means of service prove unsuccessful.³⁰

However, it may be unnecessary for Congress to take such a drastic action. Snyder could have potentially remained aboard his yacht until the results of the November 2022 midterm elections were finalized, in hopes that a changing of House seats would lead to a committee composition more favorable to his position, but that is an expensive, impractical gamble that would also force Snyder to miss most of his team’s football games.³¹ Additionally, although Snyder is not the first ultra-wealthy person to avoid congressional subpoenas, it appears to be a relatively niche issue.³² Overhauling the method of service for congressional subpoenas also comes at a great risk to the due process rights of American citizens.³³ If Congress were to implement such an approach, it would have to do so under careful consideration and weigh the interests of its investigatory capacity against the rights of citizens.

The most accessible and easily implemented approach would likely be to send subpoenas through email. However, this poses serious potential problems, with the most significant being that email would not be “reasonably calculated” to alert the recipient.[34]³⁴ The Ninth Circuit in Rio Props permitted service through email, but did so under the fact that the recipient organized its business to receive all contact exclusively through email.[35]³⁵ If Congress implemented an email-based subpoena procedure, it would be an unreasonable expectation to assume that every recipient of a congressional subpoena religiously checks each one of their emails, awaiting a message to testify or produce documents. Lacking an easily accessible, widely used method of electronic service that Congress could utilize to serve subpoenas that satisfies due process requirements, it would be inadvisable to implement such a switch.

IV. Conclusion

Congress’ power to issue subpoenas and carry out its duties are pivotal to the core function of our government.³⁶ Failure to cooperate when called upon hinders the branch’s ability to conduct necessary investigations and make well-informed policy decisions.³⁷ However, the in-person service requirement of congressional subpoenas has created a unique loophole where those with enough means may dictate the circumstances under which they appear before congressional committees. Congress could potentially close those loopholes by allowing subpoenas to be served electronically but doing so runs the risk of infringing on our core constitutional rights.

Cover Photo by nikldn on Unsplash

Stephen Fox

Stephen Fox is a 2L and Associate Member of the University of Cincinnati Law Review. He grew up in East Lansing, Michigan where he studied at Michigan State University and earned a B.A. in Economics. Stephen is particularly interested in criminal, employment, and health law.

References

1
Vinnie Lyer, Daniel Snyder and Washington Football Team: A Timeline of His Dysfunctional, Now Full Ownership, The Sporting News (Mar. 24, 2021), https://www.sportingnews.com/us/nfl/news/daniel-snyder-washington-football-team-timeline/193z6ghhzskkb1vbqskgvzucmr [https://perma.cc/HPP2-F2WC].
2
Nicki Jhabvala, Railing Collapses at FedEx Field, Causing Fans to Fall and Narrowly Miss Eagles’ Jalen Hurts, Wash. Post (Jan. 2, 2020, 7:59 PM), https://www.washingtonpost.com/sports/2022/01/02/fedex-field-railing-collapse/ [https://perma.cc/4CY9-V9J6]; see also Emma Bowman, For Many Native Americans, the Washington Commanders’ New Name Offers Some Closure, NPR (Feb. 6, 2022), https://www.npr.org/2022/02/06/1078571919/washington-commanders-name-change-native-americans [https://perma.cc/N7W3-89GV].
3
Tackling Toxic Workplaces: Examining the NFL’s Handling of Workplace Misconduct at the Washington Commanders, H. Comm. on Oversight and Reform, https://oversight.house.gov/legislation/hearings/tackling-toxic-workplaces-examining-the-nfl-s-handling-of-workplace-misconduct [https://perma.cc/X4HQ-XT3A].
4
Subpoenas are written orders compelling an individual to testify on a specific topic. These are generally utilized by courts or legislative proceedings. See Subpoena, Cornell L. Sch. Legal Info. Inst., https://www.law.cornell.edu/wex/subpoena [https://perma.cc/L6Y9-9VZX].
5
Matt Stieb, NFL Owner Dodges Congressional Subpoena by Going on Vacation on His Yacht, Intelligencer (July 13, 2022), https://nymag.com/intelligencer/2022/07/dan-snyder-avoids-oversight-subpoena-by-going-on-his-yacht.html [https://perma.cc/UQQ7-X5MQ].
6
Rules of the H.R. – One Hundred Seventeenth Congress, Committee on Rules, https://rules.house.gov/rules-and-resources [https://perma.cc/YPU6-M22F].
7
Watkins v. United States, 354 U.S. 178, 188 (1957).
8
Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 515 (1975).
9
2 U.S.C.S. § 192.
10
Mark Maske et al., Daniel Snyder’s Lawyer Insists There’s ‘No Valid Basis’ for a Subpoena, Wash. Post (July 13, 2022), https://www.washingtonpost.com/sports/2022/07/13/dan-snyder-subpoena-house-oversight-committee/ [https://perma.cc/3MY8-LSSK].
11
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13
Id.
14
Timothy Rapp, Commander’s Daniel Snyder Won’t Testify Under House Subpoena, Attorney Says, Bleacher Rep. (July 13, 2022), https://bleacherreport.com/articles/10041968-commanders-daniel-snyder-wont-testify-under-house-subpoena-attorney-says [https://perma.cc/G5QG-SS5L].
15
Id.
16
Id.
17
Andrew Beaton, House Oversight Committee Launches Probe into NFL’s Washington Football Team Investigation, Wall Street J. (Oct. 21, 2021), https://www.wsj.com/articles/house-investigation-nfl-emails-jon-gruden-11634858954?cx_testId=3&cx_testVariant=cx_17&cx_artPos=0&mod=WTRN#cxrecs_s [https://perma.cc/2N5K-AYVJ].
18
Chairwoman Maloney Announces Intent to Subpoena Dan Snyder, H. Comm. on Oversight and Reform, https://oversight.house.gov/news/press-releases/chairwoman-maloney-announces-intent-to-subpoena-dan-snyder [https://perma.cc/Y42H-TK3F].
19
Stieb, supra note 5.
20
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21
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22
Foreign Process, US Marshalls Service, https://www.usmarshals.gov/what-we-do/service-of-process/civil-process/foreign-process [https://perma.cc/K522-NSUZ].
23
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24
Stieb, supra note 5.
25
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26
Mark Maske et al., Daniel Snyder Faces House Committee Under Oath for More Than 10 Hours, Wash. Post (July 28, 2022), https://www.washingtonpost.com/sports/2022/07/28/dan-snyder-house-oversight-committee-interview/ [https://perma.cc/2XVJ-GVL6].
27
Rio Props. v. Rio Int’l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002).
28
Id.
29
Id. (citing Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)).
30
Id. at 1017 (citing New England Merchs. Nat’l Bank v. Iran Power Generation & Transmission Co., 495 F. Supp. 73, 81 (S.D.N.Y. 1980)).
31
Mike Florio, Does Daniel Snyder Plan to Avoid Congressional Subpoena by Hiding out on his Yacht?, Pro Football Talk (July 14, 2022), https://profootballtalk.nbcsports.com/2022/07/14/does-daniel-snyder-plan-to-avoid-congressional-subpoena-by-hiding-out-on-his-yacht/ [https://perma.cc/KZ77-CR3N].
32
Roger Sherman, Dan Snyder is Sailing Away from Consequences that Might Never Come, The Ringer (July 27, 2022), https://www.theringer.com/nfl/2022/7/27/23279437/dan-snyder-washington-commanders-congress-yacht [https://perma.cc/QLG5-E6C6].
33
Rio Props, 284 F.3d at 1016.
34
Mullane, 339 U.S. at 314.
35
Rio Props, 284 F.3d at 1017-18.
36
Watkins v. United States, 354 U.S. 178, 187 (1957).
37
Id.