If Flynn pleads the Fifth, will Congress hold him in contempt?
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On May 10, the Senate Select Committee on Intelligence (SSCI) issued a subpoena to former national security adviser Michael Flynn, requesting that he produce documents related to the committee’s investigation of alleged Russian attempts to influence the outcome of the 2016 presidential election. Today, news broke that Flynn’s attorneys notified the committee’s leadership that he will invoke his Fifth Amendment right against self-incrimination and will not comply with the subpoena.

A subpoena is a writ or order commanding a person either to appear and give testimony or to appear and provide certain specified documents, records or things. In the context of a criminal investigation, federal courts may issue subpoenas ordering a witness to produce any books, papers, documents, data or other objects in court before trial or before they are to be offered in evidence. The court may hold in contempt a witness who disobeys a subpoena without adequate excuse.

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Likewise, Congress has broad powers to investigate. These powers are derived from its authority to legislate and its responsibility for impeachment and removal from office. Those investigative powers include the power to issue enforceable subpoenas to require individuals to testify or to produce documents. The subpoena power may be exercised by congressional committees such as the one responsible for the subpoena to Flynn.

 

The U.S. Supreme Court has held that the Fifth Amendment right against self-incrimination is available to recipients of congressional subpoenas. The right generally only protects a witness from being required to testify and not from being compelled to produce existing documentary evidence. However, the target of a document subpoena may be able to assert the right where he can show that, by producing documents, he would admit that the records exist, are in his possession and are authentic. If Flynn indeed attempts to assert his right against self-incrimination, the committee can review its assertion to determine its validity but Flynn would not be required to state specifically why he fears incriminating himself. At that point, the committee would have two options regarding how to proceed.

First, the committee could attempt to obtain a court order compelling Flynn to respond to the subpoena and granting him immunity against the use of any materials he produces in a later criminal prosecution. While documents produced by Flynn in response to the subpoena could not be used against him in a later prosecution, he could still be prosecuted and convicted on the basis of other evidence derived from independent sources.

Application for a judicial immunity order would require approval by a majority of the full Senate or by two-thirds of the Senate intelligence committee, and a court generally may not refuse to issue such an order in response to a procedurally proper congressional request. Importantly, once such an order is issued, Flynn would no longer be able to assert the self-incrimination privilege and would be required to comply with the subpoena. The reason for this is that the grant of immunity from prosecution based on materials produced would afford the same protection as the Fifth Amendment privilege, making it no longer necessary to assert the privilege.

Second, the committee could reject Flynn’s assertion of the right against self-incrimination and seek to hold him in contempt for his non-compliance with the subpoena. The committee would have three options under which it could pursue a contempt citation. Under the first, the full Senate could call Flynn and try him, with a conviction resulting in imprisonment or the imposition of a fine.

The Senate could order Flynn to be imprisoned for a set period of time as punishment or for an indefinite period (though likely not longer than the end of the current session of Congress) until he agrees to comply with the subpoena. In the event that the Senate were to cite Flynn for contempt and order him to be imprisoned, he could seek court review through a habeas corpus petition.

Though the inherent contempt power has the advantages of allowing Congress to act without the help of any other branch of government and only limited judicial review through a habeas corpus proceeding, it is unlikely that the full Senate would stop its other work to try Flynn for contempt. Notably, neither house of Congress has used the inherent contempt process since 1935.

The second available contempt option would be to request that the full Senate vote to seek Flynn’s prosecution under the criminal contempt statute, 2 U.S.C.§192. This statute makes noncompliance with a subpoena a misdemeanor punishable by a fine of up to $100,000 and imprisonment of up to 12 months. The criminal contempt statute would be used purely to punish Flynn for his noncompliance because he would not be able to purge himself of his contempt by producing the subpoenaed documents after being voted in contempt by the full Senate.

The weakness of the criminal contempt statute is that once the Senate approves a contempt referral, it would be sent to a U.S. attorney “whose duty it shall be to bring the matter before the grand jury for its action.” Despite the seemingly mandatory language of the statute, Congress cannot force U.S. attorneys to begin prosecutions. In fact, several recent examples show that congressional attempts to refer current or former executive branch officials for prosecution under the contempt statute have met with refusal by the Department of Justice to take any action.

Finally, the Senate has the statutory authority to direct its Office of Legal Counsel to file a civil lawsuit in federal court to seek a declaration that a noncompliant subpoena recipient is legally required to respond to the subpoena. If the court concludes that the recipient is obligated to comply with the subpoena and issues an order to him to do so, then his continued refusal to comply could place him in contempt of court. The major drawback of this approach is that the enabling statute on its face does not grant jurisdiction for subpoenas issued to federal officers acting in their official capacity.

While Flynn is no longer national security adviser, it is questionable at best whether the Senate could use it to try to obtain documents that may touch on his service. Indeed, since the civil enforcement statute’s passage, the Senate has chosen to seek civil enforcement of a subpoena six times, and it brought none of those proceedings against current or former officials of the executive branch.

Simon H. Bloom is a partner at the Atlanta law firm of Bloom Sugarman. He has served for the past nine years as an adjunct professor at Emory University School of Law.


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