Not every investigative demand is federal, and the differences matter — issuing authority, scope, and the procedure for challenging it all change. What does not change is that a company facing a District or state demand may also be within reach of a federal matter arising from the same facts, and the obstruction provisions at 18 U.S.C. §§ 1001, 1512 and 1519 attach to federal matters however the company first learned of the problem.
Waxman Litigation acts for companies and their boards. Seth B. Waxman spent 13 years as an Assistant United States Attorney in the District of Columbia, roughly eight of them on fraud and public corruption.
Establish the posture first
The first questions are the same in every case: who issued the demand, under what authority, what is actually being asked for, and whether a parallel federal matter exists or is likely. That last question changes the handling of everything else.
Where federal exposure attaches anyway
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both. (Added Pub. L. 107–204, title VIII, § 802(a) , July 30, 2002 , 116 Stat. 800 .) U.S. Code Toolbox Law about… Articles from Wex Table of Popular Names Parallel Table of Authorities How current is this? Accessibility About LII Contact us Advertise here Help Terms of use Privacy
18 U.S.C. § 1519
Records destroyed in contemplation of a federal matter fall within § 1519 whether or not the demand in hand is federal. Preservation should therefore be broad, early and documented.
Two authorities, one set of facts
Where both a local and a federal authority are interested, the analysis is the same as any other parallel proceedings problem: material given to one is generally available to the other.
Not every local demand is a law-enforcement one. The District’s Attorney General also holds a civil pre-suit subpoena power over nonprofit corporations under § 29–412.20(b)(1), exercised while the office is still deciding whether to sue — so the first demand can arrive with no complaint on file and no criminal matter behind it. That distinction changes the response: see the D.C. Attorney General’s pre-suit subpoena power.
What is the exposure created by the response to a subpoena?
A state or local subpoena can still create federal exposure, because these provisions reach conduct in relation to any matter within federal jurisdiction. The response is the risk; treat preservation as immediate.
| Provision | Official heading | Maximum term |
|---|---|---|
| 18 U.S.C. § 1519 | Destruction, alteration, or falsification of records in Federal investigations | 20 years |
| 18 U.S.C. § 1512 | Tampering with a witness, victim, or an informant | Up to 20 years, depending on the conduct charged |
| 18 U.S.C. § 1001 | Statements or entries generally | 5 years (8 if terrorism-related) |
Frequently asked questions
Is a local subpoena less serious?
It is a different process. Whether the exposure is less depends on the facts and on whether a federal matter is also in prospect.
Should we preserve everything even for a local demand?
Preservation should be broad and early, particularly where a federal matter may follow.
Can we challenge the scope?
Challenge procedures vary by issuing authority — that is one of the first things to establish.
Could this become federal?
It can. That possibility should shape the response from the beginning.
Who can be prosecuted over the response rather than the underlying conduct?
Any individual who handles the records. 18 U.S.C. § 1519 begins with “Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” — it reaches an employee acting alone, with no requirement that the company be charged at all.
Why does a local demand still call for a federal-standard hold?
Because of how § 1519’s intent element is written. It reaches conduct intended to impede a matter within the jurisdiction of any federal department or agency “or in relation to or contemplation of any such matter” — so the federal hook does not depend on a federal subpoena having arrived first.
When should the preservation hold go out?
On receipt, before anyone assesses the merits. Routine deletion continues automatically while the merits are being discussed, and 18 U.S.C. § 1519 carries up to 20 years — a far heavier exposure than most underlying local matters, which is why the hold is not treated as a formality.
How can the scope of a subpoena be narrowed?
By a prompt, targeted application rather than by simply not complying. In federal practice Federal Rule of Criminal Procedure 17(c)(2) allows the court, on motion made promptly, to quash or modify a subpoena if compliance would be unreasonable or oppressive; local courts have their own equivalent mechanism, which is the first thing to identify.
What are the penalties for getting the response wrong?
They can exceed the original matter. 18 U.S.C. § 1519 carries a fine and up to 20 years, and 18 U.S.C. § 1001(a) carries up to 5 years for knowingly and willfully making a materially false statement in any matter within the jurisdiction of the executive, legislative or judicial branch.
Sources and legal authorities
General information about federal law, not legal advice, and not a prediction of any outcome. Federal criminal exposure turns on facts this page cannot assess. If your company has been contacted by investigators or has received a subpoena, take advice before gathering documents or interviewing staff.
Related: Government Subpoenas & Investigative Demands · Grand Jury Subpoenas · White-Collar Defense · Internal Investigations. Call (301) 901-3109 or use the contact page.