How to evade a federal subpoena without really trying
July 19, 2022
by Steve Thomas
I know I said just last week that this column was going to change to include a wider breadth of topics, but the idea of Washington Redskins Washington Football Team Washington Commanders Washington owner Dan Snyder floating aimlessly around the Mediterranean Sea is too good of an opportunity to pass up. I’d like to spend a few moments discussing what’s going on here and what it means for the improper congressional inquiry into the Washington team.
As everyone knows, a few weeks ago, the House Oversight Committee invited Snyder and NFL Commissioner Roger Goodell to testify about the allegations of abuse of women and others, as well as the stories of financial impropriety that have been leveled against the team. Goodell showed up and answered all questions, about which I extensively wrote a few weeks ago (click here to read). Snyder declined the invitation, and the committee was petty enough to leave an empty chair and nametag for him at the Goodell hearing when everyone knew he wasn’t going to be there.
At the end of that hearing, the Committee chairman, Carolyn Maloney, made a big, public point to announce that the Committee was going to subpoena Snyder – remember, this whole process is nothing more than a callous, cynical, and inappropriate attempt to pander for votes. Snyder, of course, is apparently currently floating around on his kazillion-dollar luxury yacht off the coast of Italy and other fabulous places, purportedl to conduct business. There’s a Twitter account, @DanSnydersYacht, which claims to be able to track the boat. How this happens from a technical perspective is a mystery to me – how does one hack into the GPS of a boat that’s halfway across the world? Regardless, if this account is to believed, Snyder has spent the last several weeks in the region, with the only distraction being Snyder’s jet flying to Italy, then back to Dulles, and another Snyder jet flying to the Bahamas shortly thereafter.
Snyder’s location may be something of a mystery, but one thing’s for certain: he clearly has no intention of allowing himself to be caught by a process server with a subpoena. Further, his attorney refused to accept service for the subpoena, stating that she lacked authority to accept service. Instead, Snyder’s attorney offered to produce him for voluntary testimony on July 28, which the Committee refused. His attorneys also made it known that they had requested that the Committee provide documents that would be presented to Snyder in his testimony, plus a scope of topics to be discussed. The Committee refused both his offer of voluntary testimony and his demands for documents and topics. On the surface, Snyder’s actions seem cowardly and wholly unworthy of a guy who “leads” – and I mean that in the most basic possible sense – a multibillion dollar professional sports team. This may be true to some degree, but there’s more going on than it may appear.
This is a case of Snyder doing what he’s always done, which is fighting tooth and nail at every turn, even when it’s not the wisest strategy to do so. Congressional testimony comes with the penalty of perjury, so Snyder can’t outright lie to Congress, but a voluntary appearance does have protections that don’t exist with testimony under a subpoena. Snyder and/or the Washington organization has entered into an unknown number of non-disclosure agreements with certain accusers who used to be part of the organization. The average business non-disclosure agreement contains language that prohibits each party from disclosing the subject information to anyone outside of attorneys and certain other advisors without approval of the opposing party. To fail to do so means a breach of the agreement, and that will come with a financial penalty, which is often pre-agreed, and it may also have language in which the parties pre-agree to not dispute an injunction upon breach.
These type of agreements, which aren’t public documents, almost always contain exceptions for testimony by subpoena in a court of applicable jurisdiction, plus testimony compelled by Congress. In this case, then, Snyder’s offer to appear voluntarily – which, ironically is what the committee originally asked for and is now refusing – would give Snyder an excuse to not answer a host of questions that purportedly violate one or more provisions of the non-disclosure agreement. Congress routinely makes a point of saying that it won’t accept most claims of privilege, but at the end of the day, they can’t make Snyder say that things that he believes he can’t say.
Snyder, through his attorneys’ public statements, wants to gain the benefit of public perception. He wants the public to see that he is now trying to comply, but he’s doing in in a way that will limit his potential liability, because the average person on the street doesn’t fully understand the intricacies of situation. This is evident by the public statements released by his attorneys, who have made a point to note his generous offer to appear voluntarily, with statements like, “they can’t take yes for an answer”.
Instead, what the Committee now hopes to do is get rid of this excuse by forcing Snyder to appear by subpoena. It seems improbable that the Committee didn’t understand the situation prior to the original invitation, so my guess is that Snyder’s hubris and arrogance irritated the Committee and caused them to act.
None of this surprises me. Having deposed a significant number of witnesses, I can tell you that even under the most imbalanced circumstances, potential witnesses almost always try to negotiate dates, times, locations, and topics. The level of dispute rises dramatically when the witness is rich and powerful. I’d expect Snyder to fight, and I’d advise him to do so to one extent or the other. He’d be walking into a hostile situation, so it’s to his benefit to try to establish some boundaries. I certainly wouldn’t advise him to just agree to testify at a date and time of the Committee’s choosing without at least trying to negotiate a bit.
It’s not likely even under the best circumstances that a bunch of congressmen are going to get much from testimony of a well-prepared witness, even one who’s historically been bad at public speaking as has Snyder. Even though some Congressman are licensed attorneys, many weren’t litigators and none are currently in practice. Plus, many of them are supremely arrogant and ask questions and make statements only intended for political purposes. Very, very few of them are good enough to question a witness such a way as to generate testimony that matters, and of those few, almost all of them simply want to win political points in the court of public opinion. Plus, my experience taking real depositions tells me that testimony of substance on complicated issues take all day, not just an hour or two. It takes talented, experienced litigators to generate testimony that matters, not a bunch of preening, prancing, mostly dumb politicians trying to create kabuki theater.
All of that is to say that it’s unlikely that Snyder would say much that truly damages him, but this is especially true if his appearance is not compelled by subpoena. That’s the other reason beyond simple irritation why the Committee now wants him to appear under subpoena. The reason why the U.S. Marshall Service, which serves congressional subpoenas, can’t get to Snyder other than the federal government being too cheap to buy a ticket to Italy is that the Marshall Service doesn’t have the legal authority to operate outside the United States.
Hypothetically, then, Snyder could remain on the lam on his luxury yacht forever, occasionally stopping into some port for a few hours for fuel and food. His long-game here may be to outlast the Committee. If national polls are to be believed, the Democratic party will likely lose control of the House of Representatives to the Republican Party. If, God willing, that happens, the Oversight Committee’s investigation into the Washington team will almost certainly end, because the GOP committee members appear to universally believe that the entire investigation is a case of congressional overreach and shouldn’t exist. The election is in late November, but my guess is that the substantive, non-emergency work on Congress will end at least a few weeks before then and won’t pick back up until the new Congress takes power in January.
As silly as it sounds, Snyder’s plan could possibly be to float around for another three months. That won’t win him points in the court of public opinion, but he also has no more points to lose. Public opinion of him can’t get any worse, so he may have more to lose by testifying without the protection of a voluntary appearance than he would by risking a further loss of respect by the public or his fellow owners. A further erosion of respect for Dan Snyder isn’t possible.