Subpoena power is one of the most consequential tools available to federal prosecutors and agencies.
In 2026, it is being wielded in ways that are drawing pushback from the federal judiciary. From grand jury subpoenas targeting journalists’ phone records to administrative subpoenas aimed at law firms, hospitals, and even the Federal Reserve, courts across the country are increasingly scrutinizing whether the government’s stated purpose for a subpoena holds up—or whether it masks retaliation, intimidation, or an improper investigative motive. Recent court opinions in this area—issued as recently as August 14, 2026—demonstrate that subpoena litigation can often be complex and nuanced, requiring skilled advocacy.
What You Need to Know
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While grand jury and civil subpoenas have long enjoyed a presumption of validity, several recent rulings suggest that presumption is not unconditional. Federal judges have recently quashed subpoenas, threatened sanctions, and issued pointed rebukes of prosecutorial conduct. These developments carry implications for any business, institution, or individual that receives a federal subpoena in the current environment.
Among the most recent examples, on July 27, 2026, Sen. Adam Schiff (D-Calif.) and nine other members of the Senate Judiciary Committee wrote a letter to then-Acting Attorney General Todd Blanche “to express serious concern” regarding federal grand jury subpoenas seeking testimony and phone records of New York Times journalists and their families.[1] Those subpoenas were withdrawn just a few days earlier, on July 23, after a federal judge reportedly criticized the DOJ.[2] As another example, in March 2026, the U.S. District Court for the District of Columbia quashed two criminal subpoenas investigating Federal Reserve Chair Jerome H. Powell, finding an improper purpose.[3]
This Insight surveys the legal framework governing federal subpoenas, examines high-profile 2026 cases in which courts have pushed back, and offers practical guidance for recipients weighing whether, and how, to challenge a subpoena.
The Role of Subpoenas in Federal Criminal and Civil Cases
Federal subpoena authority in criminal and civil cases is governed by two distinct procedural rules: Federal Rule of Criminal Procedure (FRCrP) 17 for criminal proceedings and Federal Rule of Civil Procedure (FRCP) 45 for civil proceedings. In addition, grand jury subpoenas are rooted in the Fifth Amendment, which requires that felony prosecutions proceed by grand jury indictment, as well as FRCrP 6, governing grand jury secrecy. There are also federal statutes that authorize the DOJ and other government agencies to issue civil investigative demands, such as the False Claims Act.
Grand Jury Subpoenas. “The function of the grand jury is to inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred. As a necessary consequence of its investigatory function, the grand jury paints with a broad brush.”[4] While the scope of a grand jury is broad, it is not unlimited. “Grand juries are not licensed to engage in arbitrary fishing expeditions, nor may they select targets of investigation out of malice or an intent to harass.”[5]
Criminal Trial Subpoenas. FRCrP 17 states that generally, a subpoena may order a witness to produce any books, papers, documents, data, or other objects the subpoena designates. On a motion made promptly, a court may quash or modify a subpoena if compliance would be unreasonable or oppressive. FRCrP 17(c)(2).
Civil Subpoenas. FRCP 45 states that generally, a subpoena must command each person to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of premises. FRCP 45 also provides protections for subpoena recipients: the court for the district where compliance is required may, on motion, quash or modify the subpoena.
Administrative Subpoenas. While Rule 45 governs civil subpoenas in litigation, it does not apply directly to administrative subpoenas, which are issued by agencies. FRCP 81(a)(5) provides that the Federal Rules of Civil Procedure apply to proceedings to compel testimony or the production of documents through a subpoena issued by a U.S. officer or agency under a federal statute, except as otherwise provided by statute, local rule, or court order. In the False Claims Act context, for instance, civil investigative demands (akin to administrative subpoenas) are governed by 31 U.S.C. § 3733.
Presumption of Validity. When issued by the government, all of these types of subpoenas have historically been treated as presumptively valid. To prevail on an ordinary motion to quash, the moving party bears the burden to come forward with concrete evidence sufficient to rebut the presumption of validity accorded to grand jury subpoenas.[6] Civil subpoenas, governed by FRCP 45, may be challenged, for example, for failure to allow a reasonable time to comply, undue burden, or privilege.
Recent examples from high-profile cases illustrate that the government has, at times, pushed this presumptive validity to its limits. These cases also offer insights for recipients of government subpoenas.
Freedom of the Press: The New York Times Subpoenas
The DOJ issued subpoenas on July 10, 2026, seeking phone records from New York Times journalists, following two stories regarding the new Air Force One. The New York Times filed a motion to quash on July 15.[7]
As reported by NPR, Judge Arun Subramanian of the U.S. District Court for the Southern District of New York declared in a July 23, 2026, hearing that, if the subpoenas were not withdrawn, he would quash them, citing First Amendment concerns as well as slipshod legal work.
“Subpoenas are the last step. Not the first step, but the last step,” he said (as reported by the Associated Press and the U.S. Press Freedom Tracker). “When you see something like this, if this were a civil proceeding, what I would normally do is ask the parties to show cause why sanctions should not be issued.”
The DOJ withdrew the subpoenas on July 23, 2026, yet it was the latest of numerous such incidents in the U.S. Press Freedom Tracker. Thus, in a letter to DOJ, Sen. Schiff requested a “complete accounting of every instance since April 25, 2025, in which the DOJ requested or issued compulsory legal process (including grand jury subpoenas, search warrants, or third-party record requests) targeting journalists, news organizations, their family members, or their close associates, including the circumstances surrounding the January 2026 search of a Washington Post reporter’s home and the June 2026 grand jury subpoenas issued to The Wall Street Journal and The Washington Post.”
The responses were due to the Senate Judiciary Committee by August 7, 2026.
The American Bar Association and Law Firms
As Law.com reported, the DOJ has issued two sets of subpoenas to 14 law firms, allegedly in an attempt to pressure the American Bar Association (ABA) into dropping a challenge against the Executive Office of the President, the DOJ, and numerous other agencies and officials alleging an “intimidation policy” against law firms.[8] The subpoenas included a request for information relating to communications with the president’s lawyer, agreements with the administration to avoid executive orders or investigations, and social media posts and direct messages relating to law firm executive orders or agreements.
The underlying challenge, filed by the ABA in the U.S. District Court for the District of Columbia on June 16, 2025, alleges First Amendment violations (“Suppression of and Threatened Retaliation for Protected Activity,” “Viewpoint Discrimination,” “Right to Petition the Government,” “Free Association and Compelled Disclosure,” and “Overbreadth”), and “Ultra Vires Presidential Action—Separation of Powers.”
As of mid-July, it was “unclear if any firms have responded,” though some expect the firms to challenge the subpoenas based on an improper purpose.
“Unprecedented Action”: The Federal Reserve Subpoenas
In January 2026, the DOJ served the Federal Reserve with grand jury subpoenas related to Powell’s testimony before the Senate Banking Committee in June 2025. One subpoena demanded records regarding a project to renovate historic Federal Reserve office buildings, and the other sought information on the related testimony. Though Powell was never charged, federal prosecutors were investigating whether he made false or misleading statements to Congress about the scope and cost of the renovation project.
U.S. District Judge James Boasberg quashed both of the subpoenas, noting that “a unanimous chorus of sister circuits agrees that courts may quash subpoenas that the Government has issued for an improper purpose.” In his opinion and order issued on March 11, 2026, Judge Boasberg reasoned as follows:
The Board [contends] that the subpoenas are merely part of the gameplan to pressure Powell to bend to the President’s wishes or to get rid of him. The case thus asks: Did prosecutors issue those subpoenas for a proper purpose? The Court finds that they did not. There is abundant evidence that the subpoenas’ dominant (if not sole) purpose is to harass and pressure Powell either to yield to the President or to resign and make way for a Fed Chair who will. On the other side of the scale, the Government has offered no evidence whatsoever that Powell committed any crime other than displeasing the President. The Court must thus conclude that the asserted justifications for these subpoenas are mere pretexts.[9]
Judge Boasberg distilled the case to “four lessons”: First, improper purposes include when prosecutors use a grand jury to “engage in arbitrary fishing expeditions” and when they “select targets of investigation out of malice or an intent to harass.”[10] Second, “an abusive purpose need not be clearly identified in precedents for a court to deem it improper.” Third, “the government is not necessarily acting for an improper purpose just because it seeks information relevant to a criminal investigation.” Fourth, “the strength of a movant’s evidence of an improper purpose determines how much the Government must show to substantiate its asserted proper purpose.”[11]
Though the government filed a motion for reconsideration—which Judge Boasberg denied on April 3, 2026—and threatened to appeal (it did not), the government ultimately closed its investigation. It also moved Judge Boasberg to vacate the order, which he denied on June 11, 2026.
Administrative Subpoenas: Gender-Affirming Care
The DOJ does not always publicly comment on its recent subpoena actions, but it has done so in the context of gender-affirming care. In July 2025, the agency announced that it had sent more than 20 subpoenas to doctors and clinics involved in performing transgender medical procedures on children. Some results:
On September 3, 2025, the U.S. District Court for the Western District of Washington granted a motion made by a hospital to quash a DOJ subpoena duces tecum seeking personnel files, patient information and medical records, and billing information related to gender-affirming care.[12] The subpoena also sought information about communications with pharmaceutical companies and government agencies regarding puberty blockers and hormones.
Judge John H. Chun found that the DOJ did not establish “that it has a realistic expectation of discovering something relevant to the investigation of a federal healthcare offense.” Even if it did establish a prima facie case, the hospital was able to show that the subpoena was issued for an improper purpose—“to further its broader goal of ending ‘gender-affirming treatment’ in Washington state”—and not issued to investigate a federal health care offense.
On September 9, 2025, the U.S. District Court for the District of Massachusetts granted a motion to quash an administrative subpoena issued to another hospital pursuant to 18 U.S.C. § 3486 for information regarding personnel, documents, and billing codes in connection with pediatric gender-affirming care.[13] The subpoena was purportedly issued to investigate whether the hospital was engaged in unlawful off-label promotion and/or unlawful dispensing of puberty blockers and cross-sex hormones in violation of the Federal Food, Drug, and Cosmetic Act (“FD&C Act”) and any potential false claims submitted to federal health care programs.
Judge Myong J. Joun concluded that the government failed to show that the subpoena was issued for a proper purpose and provided no information about improper billing practices and unlawful off-label promotion.
In 2026, the prosecutorial landscape has only gotten more complicated. On May 1, 2026, the DOJ’s Enforcement and Affirmative Litigation Branch and the U.S. Attorney’s Office for the Northern District of Texas announced that they were seeking to enforce a subpoena against a Rhode Island hospital as part of an investigation into the prescribing of certain drugs to minors with gender dysphoria and related disorders, including puberty blockers and cross-sex hormones.
While the DOJ announcement stated that the government had filed a petition the day before, it did not mention that Chief Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas had issued an order on the same day, April 30, compelling the hospital to comply.[14] The hospital filed a notice of appeal to the U.S. Court of Appeals for the Fifth Circuit on May 6; the appeal is ongoing.[15] The hospital also filed an emergency motion for stay pending appeal, and Judge O’Connor issued an opinion and order denying the hospital’s request on May 12, 2026.[16]
Meanwhile, the hospital, as well as the Child Advocate for the State of Rhode Island, filed motions to quash in the U.S. District Court for the District of Rhode Island on May 4, 2026.[17] Nine days later, the district court granted the motions, enjoining the DOJ from seeking or receiving any documents related to the subpoena, and issued an order regarding the government’s conduct relating to the Texas investigation (the "Rhode Island Order"). Judge Mary S. McElroy concluded that the DOJ had engaged in a “subterfuge to prevent [the hospital] from realizing that the DOJ had decided to go to Texas for an order compelling production of the very records they had been discussing for months.”[18]
On the merits, Judge McElroy concluded that (i) the government failed to show that the subpoena was issued for a congressionally authorized purpose, (ii) the subpoena was issued for an improper purpose in bad faith, and (iii) enforcement of the subpoena would violate the Fourteenth Amendment right to informational privacy of the children who are the subject of the medical records at issue. Regarding the lack of a congressionally authorized purpose, Judge McElroy wrote the following:
The DOJ acknowledges that merely writing off-label prescriptions is not an [FD&C Act] offense but attempts to reach prescribing hospitals indirectly by characterizing their participation in a supply chain as causing the distribution of misbranded drugs. That reframing does not save the theory.[19]
Regarding improper purpose, McElroy wrote as follows:
The evidence of improper purpose here is in the DOJ’s own public record and detailed in the decisions of the seven other federal courts that have considered identical subpoenas. The Administration has publicly characterized gender-affirming care for minors as abuse, directed the DOJ to bring its practice to an end, and celebrated when hospitals curtailed such programs as a result of this subpoena campaign.[20]
The government has appealed to the First Circuit.
On May 19, 2026, a First Circuit panel (Judges Gelpí, Montecalvo, and Dunlap) denied the Child Advocate’s request for an injunction pending appeal that would have barred the hospital from producing any subpoena-related records while the Rhode Island Order remained on appeal.[21] The panel found no irreparable harm, noting that the Texas court had directed the records be held in camera pending the outcome of both the Fifth and First Circuit appeals, rather than turned over to the DOJ.
The landscape shifted further on August 14, 2026, when a divided panel of the Ninth Circuit reversed a district court’s order quashing an analogous Health Insurance Portability and Accountability Act (HIPAA) subpoena issued to QueerDoc, PLLC, a telehealth provider of gender-affirming care.[22] The majority held that QueerDoc had not carried its “heavy” burden to show the subpoena was issued for an improper purpose, reasoning that the Trump administration’s public opposition to gender-affirming care and its directives to the DOJ to prioritize related investigations did not, standing alone, overcome the presumption of regularity owed to agency action.[23] Judge Paez dissented, arguing that the majority applied the wrong standard of review to what he viewed as a factual finding of bad faith, and that the record—including the DOJ’s own public statements, its shifting investigative theories, and the subpoena’s demands for identifying information about minor patients—supported the district court’s finding that the subpoena was pretextual.[24]
Takeaways
While most governmental subpoenas have historically been treated as presumptively valid, 2026 has shown a prosecutorial landscape markedly different from that of past administrations. As the cases suggest, recipients should consider a challenge—especially in cases where an improper purpose may be shown. If you receive a government subpoena, do the following:
- Immediately preserve potentially relevant information.
- Identify deadlines and scope.
- Secure outside counsel to engage with the DOJ over timing and scope (be aware that communication may be strained in the current climate).
- Collect and review responsive materials within your possession or control.
- Identify and segregate privilege and protect confidential information.
- Consult counsel on whether a motion to quash or modify the subpoena is warranted.
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For additional information about the issues discussed in this Insight, please contact the attorney(s) listed on this page or the Epstein Becker Green attorney who regularly handles your legal matters.
Staff Attorney Ann W. Parks contributed to the preparation of this Insight.
ENDNOTES
[1] https://www.schiff.senate.gov/wp-content/uploads/2026/07/2026.07.27-Letter-from-Sen.-Schiff-and-Colleagues-to-Acting-AG-Blanche-on-NYT-Subpoenas.pdf.
[2] https://www.courthousenews.com/ripped-by-judge-doj-drops-subpoenas-of-new-york-times-reporters/.
[3] Bd. of Governors of Fed. Rsrv. Sys. v. United States, 823 F. Supp. 3d 1 (D.D.C. 2026).
[4] United States v. R. Enters., Inc., 498 U.S. 292, 297 (1991).
[5] Id. at 299.
[6] Trump v. Vance, 977 F.3d 198 (2d Cir. 2020).
[7] In re Grand Jury Subpoenas, No. 26 Misc. 352 (AS) (S.D.N.Y. July 10, 2026).
[8] American Bar Association v. Executive Office of the President et al., No. 1:25-cv-01888-AHA (D.D.C. June 16, 2025).
[9] Bd. of Governors of Fed. Rsrv. Sys. v. United States, 823 F. Supp. 3d 1 (D.D.C. 2026).
[10] Id. (quoting United States v. R. Enters., Inc., 498 U.S. 292, 299 (1991)).
[11] Id.
[12] In Re Subpoena Duces Tecum No. 25-1431-016, 2025 WL 3562151 (W.D. Wash. Sept. 3, 2025).
[13] In Re: Administrative Subpoena No. 25-1431-019, 800 F. Supp. 3d 229 (D. Mass. 2025).
[14] In re: Administrative Subpoena 25-1431-032, Docket No. 4:26-mc-00006-O (N.D. Tex. April 30, 2026).
[15] United States v. Rhode Island Hospital, Docket No. 26-10431 (5th Cir. May 7, 2026).
[16] In re: Administrative Subpoena 25-1431-032, Docket No. 4:26-mc-00006-O (N.D. Tex. April 30, 2026).
[17] In re: Motion to Quash Administrative Subpoena to Rhode Island Hospital, No. 1:26-mc-00007 (D.R.I. May 4, 2026).
[18] Id. (May 13, 2026).
[19] In re Admin. Subpoena 25-1431-032 to Rhode Island Hosp., No. 1:26-MC-0007-MSM-AEM, 2026 WL 1329792, at *6 (D.R.I. May 13, 2026)
[20] Id. at *8.
[21] In re: Motion to Quash Administrative Subpoena to Rhode Island Hospital, No. 26-1568 (1st Cir. May 19, 2026) (order denying injunction pending appeal).
[22] QueerDoc, PLLC v. DOJ - United States Dep't of Just., No. 25-7384, 2026 WL 2359440 (9th Cir. Aug. 14, 2026)
[23] Id. at *2-20.
[24] Id. at *20-38.
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