The Senate Intelligence Committee recently issued a subpoena for former National Security Adviser Michael Flynn to turn over private documents, as part of the Committee’s investigation of possible ties between Russia and President Donald Trump‘s campaign. Flynn’s attorneys responded to the subpoena on Monday, saying that without immunity, Flynn will “respectfully decline” the Committee’s request for documents and an interview.
So, what are the potential consequences for ignoring a Congressional subpoena?
2 U.S. Code § 192 provides, in part:
Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before … any committee of either House of Congress, willfully makes default … shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.
As you can see, failing to respond to a Congressional subpoena can lead to some serious consequences.
So, now lets go into further detail about the process that may ultimately lead to the above referenced consequences.
After a witness ignores a subpoena and fails to appear, the committee rules generally require a majority vote of the full committee authorizing a resolution of noncompliance to be reported to the entire Senate. After the matter is reported to the full Senate, a floor vote is taken to determine whether a resolution of contempt may be issued against the offending individual. It takes a majority vote in the Senate to approve a resolution of contempt.
Once the resolution of contempt passes the full Senate, they technically have two options to pick from in deciding how to proceed with the case.
First, the Senate may instruct its sergeant-at-arms to arrest the individual and bring them before their presiding officer. The individual could be held in the Capitol jail, but this practice has not been used for more than 80 years.
A second, and more practical option, is for the Senate to refer the matter to the U.S. Attorney for the District of Columbia for criminal contempt proceedings. The law then requires the U.S. Attorney to empanel a grand jury to consider indictments for criminal contempt.
2 U.S. Code § 194 provides, in part:
Whenever a witness summoned as mentioned in section 192 of this title fails to appear to testify or fails to produce any books, papers, records, or documents, as required … and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with … the Speaker of the House, it shall be the duty of the said … Speaker of the House … to certify, and he shall so certify, the statement of facts aforesaid under the seal of … the House … to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.
Despite the apparent mandatory language in the statute (shall), two recent high-profile contempt resolution referral cases essentially show the statute does not operate that way. As such, Congress has had great difficulty obtaining a contempt conviction in court.
The House voted in 2012 to find then-Attorney General Eric Holder in contempt of Congress and referred the matter to the U.S. Attorney, putting them in the position of having to bring a case against their boss. After a lengthy legal battle, a federal judge in 2014 declined to find Holder in contempt. However, the judge also ordered Holder to turn over certain documents at the heart of the contempt proceeding, so both sides arguably got what they ultimately wanted in the end.
In 2014, the House passed a resolution of contempt finding against former IRS official Lois Lerner. Lerner refused to testify when she was called before a Capitol Hill committee investigating the targeting of groups believed to be affiliated with the Tea Party movement. In 2015, the U.S. Attorney wrote a letter to then-Speaker of the House John Boehner, stating he would not move forward with a contempt case against Lerner. In the letter, the U.S. Attorney explained that he did not believe Lerner waived her Fifth Amendment rights by making an opening statement and then otherwise refusing to testify before a Congressional committee.
Senate rules also provide a third option, which involves bring a civil action in federal district court. The Senate could seek an injunction compelling Flynn to comply with Senate process. If the court issues an injunction and Flynn still refused, he could be held in contempt of court.
Flynn’s lawyers, however, contend that the former National Security Adviser is within his rights not to obey the subpoena. They said in their letter that turning over documents would, in itself, be a testimonial act, because it would confirm or deny the existence of documents that are responsive to the Committee’s request, so Flynn could therefore invoke his Fifth Amendment right not to testify. The attorneys cited case law that says that innocent people can use the Fifth Amendment to protect themselves from testifying in situations where they would have “reasonable cause to apprehend danger from a direct answer.”
Ronn Blitzer contributed to this report.
An earlier version of this article, which referenced similar issues, appeared on September 13, 2016.
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