Roger “The Terrible” Touhy[i] led a colorful life as a prohibition bootlegger and alleged kidnapper.[ii] At his peak, Touhy allegedly operated “an empire of Northwest suburban speakeasies, controlled a big slot-machine franchise, sold 18,000 bottles of illicit beer each week and boasted he made more than $1 million a year.”[iii] Throughout his career in crime, Touhy managed consistently to attract the attention of federal law enforcement authorities, who in 1933 called him the “most dangerous man in the United States.”[iv] For instance, consider Touhy’s escape from Stateville Penitentiary in Joliet, Illinois, where he was serving a 99-year prison sentence for kidnapping John “Jake the Barber” Factor.[v] A few days after Christmas in 1942, FBI agents surrounded the apartment building where the Touhy gang was hiding out and called over a loudspeaker for them to surrender.[vi] FBI Director J. Edgar Hoover personally traveled to Chicago to oversee the raid.[vii] Describing Touhy, the New York Times reported that “The Terrible One, dressed in red pajamas and with his black hair bleached by peroxide, backed meekly out of the door, his hands raised . . . [t]he time was 5 A.M.”[viii]

Federal agents led the manhunt for Touhy and his gang, not because they had violated any federal laws in the escape from a state penitentiary, but because they were “draft delinquents” who failed to register for the Selective Service.[ix] Touhy’s underlying kidnapping sentence was also based on a series of federal investigations that eventually morphed into a state prosecution and conviction in 1934. Touhy would chronicle his time in prison — and attempt to clear his name — in The Stolen Years, published in 1959. There is some basis for Touhy’s insistence that he had been railroaded. In 1954, federal Judge John P. Barnes ordered Touhy released, in what the Chicago Tribune called a “sensational 558 page opinion, accompanied by an additional 216 pages of notes,” wherein the court found that the kidnapping was a hoax, and that Touhy’s conviction was secured by perjured testimony.[x] Touhy was finally released on November 25, 1959, but several weeks later he was murdered by gunfire outside of his sister’s home in Chicago.[xi]
Touhy at the Supreme Court

Before his eventual release, Touhy brought a habeas corpus proceeding against the warden of the Illinois State penitentiary, which eventually went up to the U.S. Supreme Court in U.S. ex rel. Touhy v. Ragen.[xii] Suing in the District Court for the Northern District of Illinois, Touhy served a subpoena duces tecum upon George R. McSwain, an FBI agent in Chicago, for the production of documents containing “evidence establishing that his conviction was brought about by fraud.”[xiii] At the hearing, Agent McSwain “personally declined to produce the records in these words: ‘I must respectfully advise the Court that under instructions to me by the Attorney General that I must respectfully decline to produce them, in accordance with Department Rule No. 3229.’”[xiv] That order from the Department of Justice read in part:

All official files, documents, records and information in the offices of the Department of Justice, including the several offices of United States Attorneys, Federal Bureau of Investigation . . . or in the custody or control of any officer or employee of the Department of Justice, are to be regarded as confidential . . . [w]henever a subpoena duces tecum is served to produce any such files, documents, records, or information, the officer of employee on whom such subpoena is served, unless otherwise expressly directed by the Attorney General, will appear in court to answer thereto and respectfully decline to produce the records specified there in, on the ground that the disclosure of such records is prohibited by this regulation.[xv]

The District Court found Agent McSwain guilty of contempt of court, which the Court of Appeals reversed.[xvi] Writing for the Supreme Court, Justice Reed declared that “Order No. 3229 is valid and [] McSwain in this case properly refused to produce these papers.”¹⁷ Furthermore, “it was appropriate for the Attorney General, pursuant to the authority given him by [the Federal Housekeeping Statute[xvii]], to prescribe regulations not inconsistent with law for ‘the custody, use, and preservation of the records, papers, and property appertaining to’ the Department of Justice, to promulgate Order 3229.”[xviii]
After Touhy

Somewhat ironically, given Roger Touhy’s acrimonious history with federal agents, federal agents can use the Touhy decision to block access to documents and testimony from government employees. In the wake of Touhy, federal agencies — including the Department of Justice — have the discretion to determine whether their employees can testify or produce documents, and under which conditions, and many federal regulations now govern how so-called “Touhy Requests” should be made and evaluated.[xix] For instance, when Fulton County (Ga.) District Attorney Fani T. Willis was investigating President Donald Trump’s effort to overturn the 2020 Georgia election results, she sent Touhy requests to the Justice Department, seeking to interview two former employees, Richard Donoghue and Jeffrey Clark.[xx] Her requests were ultimately denied.[xxi]

Depending on which agency is the subject of the Touhy request, the requesting party must generally submit the following: a statement that the United States is not reasonably anticipated to be a party in the case; the contact information for counsel of record; whether medical, pay or military service information is being requested; a summary of the facts of the case; the procedural posture of the case; a statement that the records requested are relevant, including an explanation of why; a detailed description of records or testimony sought; a time and date for production; the location of records; and a statement that the requester is willing to pay expenses for searching and production in advance, amongst other requirements.

Touhy Requests for Defense Attorneys

In a criminal case, defense counsel may wish to subpoena a federal agent, for instance, a special agent of the FBI or ATF. In such a case, the Department of Justice generally represents the federal employee who receives the subpoena related to their federal employment responsibilities, and evaluates the request using the department’s Touhy regulation.[xxii] A subpoena alone will not suffice. When these agencies receive a Touhy request, they look to the regulation to determine whether the agency will comply.[xxiii] For instance, the FBI will not reveal classified information, reveal a confidential source, or reveal investigative records complied for law enforcement purposes.[xxiv] But while the regulation sets forth the appropriate procedural mechanism for making or evaluating a Touhy request, it does not give the Government an independent privilege or right to withhold the information.

It’s also important to remember that Touhy itself involved a civil case where the United States was not a party to the litigation. The Touhy Court recognized that its holding did not address “the effect of a refusal to produce in a prosecution by the United States”[xxv] and cited to a 2nd Circuit case, United States v. Andolschek et al., where the appeals court stated:

we cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the documents relate, and whose criminality they will, or may, tend to exculpate. So far as they directly touch the criminal dealings, the prosecution necessarily ends any confidential character the documents may possess; it must be conducted in the open, and will lay bare their subject matter.[xxvi]
 

As a practical matter, a defense attorney who needs access to a government agent’s documents or testimony should file a formal Touhy request as early in the case as possible, and should consider also filing a subpoena. In case the Touhy request is denied, the attorney could then file a motion to compel. The attorney could also challenge the Touhy denial in court.

Challenging a Touhy Denial

Although there is a circuit split, with some courts holding that Federal Rules of Civil Procedure should apply as they would in all other cases, most circuits evaluate a challenge to the denial of a Touhy request under the Administrative Procedure Act, where the litigant must show that the agency decision was arbitrary and capricious.[xxvii] The 8th Circuit has suggested in dicta – but not decided – that it would follow the APA approach.[xxviii] The 7th Circuit examined such a case (in the context of civil litigation) in June 2023, when a medical group sought to depose a DEA agent and a federal prosecutor for a case pending in state court in Illinois.[xxix] Not surprisingly, courts across the country have been extremely deferential to agency decisions that decline Touhy requests. The 7th Circuit wrote that “[a]t bottom, whether to comply with a state court subpoena “is essentially a policy decision about the best use of the agency’s resources . . . [no] federal court has compelled a federal prosecutor to sit for a civil state court deposition.

This will not be the first.”[xxx]

Conclusion

Most practitioners are unlikely to encounter Touhy requests with any frequency. Nevertheless, when faced with the need to subpoena a federal agent’s testimony or documents, in either a civil or a criminal matter, it is imperative that the requesting attorney tailor their Touhy request to the agency’s regulation. But even for those attorneys who will never need to request such information, the life of the man behind the case will entertain almost anyone. If you can find a copy available, Roger Touhy’s The Stolen Years is highly recommended for any reader with an interest in bootlegging, mob culture, jailbreaking, and true crime in the freewheeling years of prohibition.