The House Committee on Oversight and Reform held a highly publicized hearing on Wednesday in which NFL commissioner Roger Goodell repeatedly parried accusations of mishandling his review of the Washington Commanders’ workplace. But the most significant development came when committee chair Carolyn Maloney announced her intent to subpoena team owner Daniel Snyder.
Snyder had declined an invitation to testify at a hearing titled “Tackling Toxic Workplaces: Examining the NFL’s Handling of Workplace Misconduct at the Washington Commanders.” His lawyers have suggested the committee hasn’t been fair in its probe.
Maloney, who sharply criticized Snyder throughout the hearing, said his “refusal to testify sends a clear signal that he is more concerned about protecting himself than coming clean to the American public.” She was unpersuaded by Goodell’s insistence that Snyder, who last year ceded leadership authority to his wife, Tanya Snyder, has been adequately punished. “If the NFL is unwilling to hold Mr. Snyder accountable,” she announced, “then I am prepared to do so.”
A subpoena, which derives from the Latin phrase “sub poena” or “under penalty,” is an order to testify, provide documents or do both in a legal proceeding. Failure to comply can bring about civil and, in some instances, criminal penalties. Congressional committees enjoy broad investigatory powers pursuant to Article I of the U.S. Constitution. Those powers, courts have held, include the use of subpoenas.
If Snyder is subpoenaed, one option would be to comply. He could answer questions under oath—and face potential perjury criminal charges if the committee believes he knowingly lies—and share requested documents. When Snyder declined an invitation to voluntarily testify, his refusal carried no legal consequences. It’s unknown how he would respond to a subpoena, where the stakes are much higher.
Snyder and his attorneys have plausible reasons for refusing to comply. They might believe he wouldn’t get a fair forum, or that he’d need to address confidential topics governed by litigation settlements and nondisclosure agreements, thereby opening him up to breach of contract lawsuits. They might also surmise that some of the expected testimony and production of documents would interfere with his rights as a client who relied on legal advice (attorney-client privilege; work-product doctrine). Lastly, requested testimony and document disclosure could require him to relinquish confidential trade secrets and other proprietary information.
Alternatively, Snyder’s attorneys and the committee could negotiate with the committee on a more limited scope of inquiry. For example, Snyder might be more willing to answer questions in written sworn testimony, rather than in person in a televised public forum.
If Snyder refuses to comply with a subpoena and negotiations break down, the ball would then be in the committee’s hands to enforce the subpoena. The committee would have several methods of enforcement. The most likely: petitioning a federal court to declare that Snyder must comply. A petition, however, would set off multistep proceedings in which both sides could present arguments and file briefs. Less likely, the committee could refer the matter to the Department of Justice, though the underlying controversy is civil in nature and the DOJ would not have to act.
In a legal proceeding, the committee would insist Snyder’s unwillingness to comply unlawfully interferes with the committee’s far-reaching authority. The committee, to that point, possesses “the authority to investigate the subjects within the Committee’s legislative jurisdiction as well as ‘any matter’ within the jurisdiction of the other standing House Committees.”
Timing is a relevant factor. If, as expected, the Republicans gain control of the House following November’s midterm elections, Maloney would lose her chair position next January, and Republican committee members would set the agenda. Several Republican committee members on Tuesday opined that, in their view, the Commanders investigation was a waste of committee staff time and tax dollars. Snyder’s ability to “run out the clock” could therefore prove to be a key factor.