Michael Flynn Took the Fifth – So What Happens Now?

Yesterday former National Security Advisor Michael Flynn informed the Senate Intelligence Committee he will not comply with its subpoena. The subpoena sought any documents in Flynn’s possession relating to any communications or dealings with Russian officials. Through his attorneys, Flynn claimed that turning over the documents would violate his Fifth Amendment privilege against self-incrimination.

Now that Flynn has taken the Fifth, what happens next? Basically there are three alternatives: 1) the Senate challenges the claim of privilege; 2) the Senate grants Flynn immunity; or 3) the Senate decides to accept Flynn’s assertion of privilege and move on with its investigation.

But the Chair of the Senate Intelligence Committee has reportedly expressed surprise that Flynn could take the Fifth in connection with a subpoena for documents. So the first question is:

Can He Do That?

No one has a right simply to refuse to comply with a subpoena. Flynn can’t just say, “No, thanks” and refuse to turn over the documents. He has to have a valid legal excuse. In this case, he claims that excuse is his Fifth Amendment right not to incriminate himself.

Flynn had already asserted the Fifth in connection with any possible testimony before Congress. Weeks ago he indicated he would cooperate and testify only if he was granted immunity. So far Congress has not taken him up on that offer.

But when it comes to producing documents, rather than testifying, the rules are more complicated. The Fifth Amendment generally does not protect the contents of documents that were voluntarily created. Suppose I write in my diary, “I shot the Sheriff, but I did not shoot the deputy.” Then I lose the diary and someone turns it in to the authorities, or investigators seize the diary while executing a search warrant.

The contents of the diary certainly incriminate me. But I can’t claim a Fifth Amendment right not to have it used against me. The government did not compel me to write in my diary. The Fifth Amendment limits only government compulsion of testimony and so does not apply.

Act of Production Privilege

When it comes to producing documents, the Fifth Amendment protection is not based on the contents of those documents. It’s based on something called “act of production privilege.” Act of production privilege recognizes there may be testimonial aspects involved in producing documents that are subpoenaed.

If I turn over subpoenaed documents I am admitting the documents exist, that I have them, and that I believe they are responsive to the subpoena. Forcing me to respond to the subpoena may be akin to putting me on the stand and requiring me to make those admissions. In that situation I may be able to refuse to comply, because to comply would be to incriminate myself.

Act of production privilege does not automatically apply to any document subpoena. If the government can establish that the existence of the records is a foregone conclusion – in other words, anyone in my position would be expected to have the types of records called for – it can argue there is nothing testimonial about turning them over. In addition, sometimes the government can show with some specificity that it already knows the documents exist and that I have them. In that case, the act of producing them adds nothing to the government’s knowledge and would not be privileged.

But sometimes the government knows little or nothing about the nature of potential documents or whether they even exist and is just fishing to see what’s out there. In such a case, responding to the subpoena by identifying and turning over documents may be a testimonial act.

Congress is investigating Flynn over possible contacts with Russian officials and for allegedly lying about those contacts. Documents reflecting any such contacts are therefore potentially incriminating. His attorneys argue the Senate has failed to demonstrate that the existence of the subpoenaed documents is a foregone conclusion or that the Senate already knows the documents exist. Accordingly, they say, to turn over any such documents would be a privileged testimonial act.

So now that Flynn has taken the Fifth and refused to turn over the documents, where does the investigation go from here?

Michael Flynn has invoked the Fifth Amendment

Former Nat’l Security Advisor Michael Flynn

Option One: Fighting the Privilege Claim

Congress is not required to accept Flynn’s assertion of privilege at face value. If the Senate believes the privilege claim is unfounded, if can seek to enforce the subpoena. The Senate Committee leaders have reportedly said they will “vigorously pursue” the production of the documents. There are different ways the Senate could do this.

One alternative is for the Senate to file a civil lawsuit against Flynn seeking to enforce the subpoena. In the lawsuit Flynn would assert his Fifth Amendment claim as a defense, and a judge would rule on whether that claim was valid. If Flynn lost, he could appeal. If he lost again, he could ask the Supreme Court to hear the case. In the end, if the courts found there was no privilege, a judge would order Flynn to comply with the subpoena. If he still refused, he could be punished for contempt of court.

A second alternative is for the Senate to refer the matter to the U.S. Attorney for the District of Columbia and ask him to prosecute Flynn for criminal contempt of Congress. After receiving the referral, the U.S. Attorney would decide whether to pursue the contempt case. If the U.S. Attorney chose to indict Flynn for contempt of Congress, Flynn’s defense would be that the Fifth Amendment justified his refusal to comply. Once again, the courts would ultimately rule on that claim.

The U.S. Attorney could also decide that Flynn’s Fifth Amendment claim is valid and prosecution for contempt would not be appropriate. This happened recently in the case of Lois Lerner, a former IRS official. When she took the Fifth and refused to testify before a Congressional committee about claims the IRS had improperly targeted certain political groups, Congress referred the matter to the U.S. Attorney for a contempt prosecution. The U.S. Attorney, however, decided that Lerner’s privilege claim was justified and declined to bring a case. (You can find my post with more detail about contempt of Congress and the Lerner case here.)

A referral to the U.S. Attorney turns control of the contempt decision over to the Executive Branch. But a third option is for Congress to charge Flynn itself, using its own inherent contempt power. Although this inherent contempt power is well established, Congress hasn’t used it since the 1930s.

If the Senate chose to go this route there would be a hearing before Congress, similar to a trial. Flynn would appear, be represented by counsel, and would assert his Fifth Amendment privilege as his justification for not honoring the subpoena.

If Congress rejected Flynn’s privilege claim and found him in contempt, it could have Flynn jailed until he complied with the subpoena. If that happened, of course, Flynn’s lawyers would immediately go to court seeking to have his Fifth Amendment rights vindicated and to have Flynn released. So once again we would ultimately end up with a court ruling on whether the privilege claim is valid.

These three options for enforcing the subpoena have one thing in common: none of them are quick. With court hearings and appeals it could easily take many months to resolve the privilege claims. If the Senate’s primary goal is to get the information quickly, it could instead pursue option two: granting Flynn immunity.

Option Two: Immunizing Flynn

Rather than fighting the privilege claim, the Senate could choose to grant Flynn immunity for his production of the documents. The immunity order would provide that the testimonial aspects of Flynn turning over the documents could not be used against him. In other words, the government could not introduce into evidence the fact that Flynn had possessed the documents or that he turned them over in response to a subpoena.

This more limited type of immunity is called, reasonably enough, act of production immunity. As with immunity generally, Congress has the power to grant act of production immunity even if the Department of Justice objects. Two-thirds of the members of the Senate Intelligence Committee would need to approve.

If granted act of production immunity Flynn would no longer have a basis to withhold the documents. If he continued to refuse to comply with the subpoena he would face contempt charges and could be jailed until he complied.

Immunizing Flynn would mean Congress would get the documents quickly, but there is a risk. The grant of immunity could end up torpedoing a future criminal prosecution of Flynn if a court found that the prosecution relied on information gathered from the documents produced. This happened in a case involving Webb Hubbell, President Bill Clinton’s former Associate Attorney General. Hubbell’s prosecution resulted in the leading Supreme Court decision on act of production immunity.

The Supreme Court ruled on act of production immunity in Webb Hubbell's case.

Former Associate Attorney General Webster Hubbell

United States v. Hubbell

Hubbell was subpoenaed by the Whitewater Independent Counsel to produce a large number of documents to the grand jury. He asserted his Fifth Amendment act of production privilege and refused to produce the requested documents or even admit they existed. The prosecutors granted him immunity for the act of production, and Hubbell turned over more than 13,000 pages of responsive documents.

Based on information contained in the documents, the Independent Counsel later indicted Hubbell for tax crimes and fraud. But the Supreme Court threw out the indictment, saying it violated Hubbell’s Fifth Amendment rights.

The government did not seek to use evidence that Hubbell had possessed or produced the documents – that direct evidence would have violated the immunity order. But the contents of the documents had provided information that led to Hubbell’s indictment.

The Supreme Court held that by compelling Hubbell to assemble and produce documents responsive to the subpoena the government had made use of the “contents of his mind.” The government had only learned of the information in the documents as a result of that compulsion. Therefore using the contents of the documents to prosecute Hubbell was a prohibited “derivative use” of Hubbell’s immunized act of producing them.

The law on act of production immunity is not completely clear. And this case would be different from Hubbell’s in at least one important respect. In Hubbell the documents were subpoenaed by the same grand jury that later indicted him. In Flynn’s case Congress has issued the subpoena. That would make it easier for prosecutors to argue that their own investigation was not influenced by the documents. However, given how easily information spreads through the Internet (and how easily it leaks from Capitol Hill), it might be a challenge for prosecutors to prove their case was not tainted.

Congress could decide it is willing to take that risk in order to get the information quickly. They have done it before, most famously in the case of Oliver North during the Iran-Contra investigation, where Congress’s grant of immunity ultimately resulted in North’s criminal convictions being reversed. But by granting immunity Congress could end up begin accused of sabotaging any potential future criminal case against Flynn. For now, at least, the chair of the Senate Intelligence Committee has reportedly said that immunity is “off the table.”

Option Three: Just Move Along

The third option for Congress at this point is simply to accept Flynn’s assertion of privilege and move on. There is a great deal of investigating still to be done. Congress may be able to get much of the same information from other sources.

In addition to the investigations on Capitol Hill, the Special Counsel investigation will be moving forward. Criminal prosecutors may be able to build a case against Flynn without the subpoenaed documents. If Flynn were to end up facing charges, prosecutors could potentially negotiate a plea deal. As part of that deal Flynn could agree to turn over the documents and otherwise cooperate in the investigation of others.

Although there is public pressure to get to the bottom of what happened, the investigation is still in its infancy. Granting immunity could end up being a mistake if Flynn turns out to be one of the principal bad actors. Congress and the Special Counsel have plenty of time to pursue other avenues.

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Contempt of Congress

We should probably get the obligatory bad jokes out of the way right up front. As in: “Contempt of Congress: It’s not just a crime, it’s a national attitude!” Or, “Contempt of Congress? Who ISN’T guilty of that?”

Bada-bum. Thank you, I’m here every week.

But seriously folks – the crime of contempt of Congress has been in the news again recently in connection with the dust-up between the U.S. House of Representatives and former Internal Revenue Service official Lois Lerner. The House voted to hold Lerner in contempt in 2014 after she took the Fifth at a hearing investigating an IRS scandal involving alleged targeting of conservative organizations seeking tax-exempt status.

In a different dispute in 2012, the House voted to find Attorney General Eric Holder in contempt for asserting Executive privilege and declining to provide documents related to a botched ATF gun smuggling investigation called Operation Fast and Furious. That citation represented the first time that a sitting Cabinet official had been held in contempt of Congress. Over the years the use and threatened use of this contempt power have led to some high-level political showdowns between Congresses of both parties and Executive branch officials.

The statute that governs contempt of Congress has an interesting history and raises some intriguing questions. It seems to require the local U.S. Attorney to bring before a grand jury any contempt citation that Congress sends to him or her, but that’s not the way the law has operated. Holder was not prosecuted by his own Department of Justice, of course, and the U.S. Attorney for the District of Columbia recently declined to prosecute Lerner.

The truth is, when it comes to the contempt statute there’s little Congress can do to enforce it if the Executive branch declines to prosecute. Votes to hold Executive branch officials in contempt have become largely about political theater rather than actual criminal prosecutions. But if Congress wanted to really get serious about enforcing its contempt power, it may not be quite as powerless as it first appears.

Lois Lerner was found in contempt of Congress

The Lois Lerner Case

Lois G. Lerner is the former Director of the Exempt Organizations division at the Internal Revenue Service. In 2013 the House Committee on Oversight and Government Reform, chaired by Congressman Darrell E. Issa, was investigating allegations that the IRS had acted improperly and with political motives to delay the approval of tax-exempt status applications of certain organizations. In particular, there were allegations that the IRS was screening for groups with “Tea Party,” “Patriot,” or other words in their names that might indicate an affiliation with conservative causes, and singling out those groups for increased scrutiny.

Ms. Lerner was invited to testify at a Committee hearing on May 22, 2013. When her counsel informed the Committee that she would refuse to answer questions based on her Fifth Amendment right not to incriminate herself, Chairman Issa issued a subpoena compelling her to appear. At the hearing, Ms. Lerner made a brief opening statement in which she denied having done anything wrong. She then said she would like to answer the Committee’s questions but that on the advice of her counsel she had decided to assert her Fifth Amendment privilege not to testify.

The Committee later determined that, in its view, Ms. Lerner had waived her Fifth Amendment privilege by making her opening statement. She was brought back before the Committee on March 5, 2014 and informed of the Committee’s ruling, but she continued to assert her Fifth Amendment rights. The full House of Representatives subsequently voted to hold Ms. Lerner in contempt of Congress for refusing to testify. On May 7, 2014, Speaker John Boehner referred the contempt citation to the U.S. Attorney for the District of Columbia.

Contempt of Congress: More than just a national attitude

The Contempt of Congress Statutes

The contempt of Congress statute that applied in the Lerner case, 2 U.S.C. § 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 either House . . . willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, 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.

A companion statute, 2 U.S.C. § 194, provides that if a witness has been found in contempt and that finding is duly reported to the Speaker of the House or President of the Senate, “it shall be the duty” of that leader to certify the matter to the United States attorney, “whose duty it shall be to bring the matter before the grand jury for its action.” (emphasis mine)

The controversy surrounding this statute has centered on its apparent mandate that the U.S. attorney bring the matter before a grand jury. The language of the statute highlighted above appears to leave the U.S. attorney no choice in the matter.

At a July 17, 2014 hearing before the Economic Growth, Job Creation, and Regulatory Affairs Subcommittee of the House Oversight and Government Reform Committee, Congressman Issa focused on this language when questioning Deputy Attorney General James Cole about the referral of the Lerner contempt citation and why the U.S. Attorney had not yet acted:

REP. ISSA: [The statute] didn’t say [the U.S. Attorney] can review it and look at it and think about it. It says — we’ve already made our decision. He’s been held in — she’s been held in contempt. It’s a question of when “shall” applies to bringing the case.

MR. COLE: Well “shall” doesn’t say he shall bring a case. That’s not there. The prosecutor retains discretion about whether or not a case should be brought.

REP. ISSA: Let me read this verbatim to you, because apparently only verbatim matters here. “To the appropriate United States attorney” — U.S. attorney in the district — “whose duty it shall be to bring the matter before the grand jury for its action” — shall bring it before the grand jury. There’s no discretion there, is there?

 MR. COLE: I believe that the Office of Legal Counsel, when Ted Olson was in that position, rendered an opinion that said there is discretion, in fact.

On March 31, 2015, Ronald C. Machen Jr., the U.S. Attorney for the District of Columbia, wrote to Speaker Boehner to inform him that the U.S. Attorney’s Office would not be bringing charges against Ms. Lerner. Machen said his office had concluded that Ms. Lerner had not waived her Fifth Amendment rights and therefore had a valid privilege not to testify and an absolute defense to any charge of contempt. He also reported that his office would not be presenting the matter to a grand jury, citing the “Justice Department’s longstanding interpretation of Section 194 as preserving the exercise of prosecutorial discretion in the Executive Branch.”

The Anne Gorsuch Case

The Justice Department interpretation referred to by Messrs. Cole and Machen was issued in 1984 as a result of a dispute that arose early in the first Reagan administration. In 1982 the Democratically-controlled House was investigating whether the Reagan administration was properly administering the Superfund Act, which provided for federal cleanup of hazardous waste sites. As part of that investigation, a subcommittee of the House subpoenaed a wide range of Superfund documents from the Environmental Protection Agency.

The Reagan administration took the position that a number of the requested documents were shielded by executive privilege, and President Reagan instructed the administrator of the EPA, Anne Gorsuch, to withhold the documents. The House voted to cite Gorsuch for contempt, and Speaker Tip O’Neill referred the contempt citation to the U.S. Attorney for the District of Columbia.

The Reagan administration then filed a lawsuit seeking a ruling that its invocation of executive privilege was lawful. Ultimately the two sides negotiated a resolution concerning the production of the documents, and the House voted to withdraw the contempt citation. The U.S. Attorney, who had kept the matter on hold during the pendency of the lawsuit, then presented all of the information (including the withdrawal of the contempt citation) to a grand jury, which not surprisingly voted not to indict Gorsuch.

The incident led to an opinion letter from the Department of Justice’s Office of Legal Counsel, which at the time was headed by well-known conservative attorney Ted Olson. OLC is basically the Department of Justice’s brain trust, tasked with analyzing complex legal issues and providing advice to the Attorney General and Executive Branch agencies. After a thorough discussion of the facts and legal standards, the opinion concluded that Section 194 must be interpreted to allow the U.S. Attorney to retain the discretion to decide whether and how to prosecute a contempt case, despite the language of the statute providing that the U.S. Attorney “shall” present the case to the grand jury. Any other interpretation, the opinion concluded, would raise serious separation of powers concerns.

Separation of Powers and Contempt of Congress

As the OLC opinion pointed out, the duty of the Executive branch, spelled out in Article II of the Constitution, is to ensure that the laws are faithfully executed. Congress passes the laws, but the Executive branch enforces them. When it comes to criminal laws, that responsibility has always included the concept of prosecutorial discretion, deciding whether and how to prosecute a particular case. Congress does not have the power to direct the Executive to prosecute a particular individual, just as it cannot pass a Bill of Attainder, a law singling out a person or group and punishing them without a trial.

What’s more, simply as a practical matter, Congress could not really force a U.S. Attorney present a case to a grand jury or pursue a prosecution. Any such attempted mandate would be easy to evade, even while complying with the technical terms of the statute. For example, consider the language of the current statute that the U.S. Attorney “shall” present the matter to a grand jury.  If Congress voted a contempt resolution and the U.S. Attorney concluded prosecution was not appropriate, the prosecutor could present the case to the grand jury — but urge them not to indict. If the grand jury voted to indict anyway, the prosecutor could refuse to sign the indictment, rendering it invalid. And even if the case were indicted, the prosecutor could move to dismiss it. So despite Chairman Issa’s protestations, the idea that Congress could remove discretion from the hands of the prosecutor and essentially mandate an indictment and prosecution makes little sense, either practically or constitutionally.

Congress is free to send its contempt citations to the Executive, but has no real recourse if the U.S. Attorney decides that prosecution is not appropriate. At least when it comes to disputes with senior Executive branch officials, for Congress to hold a witness in contempt under Section 192 is usually more an act of politics than a serious attempt to result in criminal charges.  But Congress does have other options.

Congress’s Inherent Contempt Power

The contempt of Congress statute is not Congress’s only tool when it comes to contempt. Since the early 1800s, the Supreme Court has recognized that Congress has its own inherent contempt power – the power to hold witnesses in contempt itself and even to lock them up. Although not specifically provided for in the Constitution, the Court has found that this inherent contempt power is essential to Congress’s ability to investigate and legislate effectively.

When the inherent contempt power is invoked, the House or Senate directs the Sergeant-at-Arms to bring the individual before the bar of Congress to be tried. (Trials in Congress are not unheard of, of course; it wasn’t that long ago the Senate held the impeachment trial of President Clinton.) If found guilty of contempt, the witness may be incarcerated until he or she complies with the order in question or until the expiration of the current session of Congress.

The witness would have certain due process rights such as the right to counsel, to be advised of the nature of the charges, and to confront witnesses and compel them to appear. The witness could also resort to the courts, for example by seeking a writ of habeas corpus if wrongfully detained. If the dispute were over something like executive privilege, you’d expect the Executive branch to seek judicial intervention at the outset to head off the proceeding — but even then, at least Congress would get a judicial ruling on the privilege question, rather than being forced to rely simply on the Executive’s own interpretation.

According to a detailed study of Congress’s contempt power by the Congressional Research Service, this inherent contempt power has long been dormant. Congress has not sought to use it since 1935, perhaps because it is too unwieldy and time-consuming or is politically unpalatable. From time to time, partisans on one side or another argue that Congress should dust off this power and start arresting witnesses for contempt on its own rather than relying on the statutory process of a referral to the U.S. Attorney.

There are even periodic rumors that there is a jail cell in the basement of the Capitol building, although apparently this is not the case. The U.S. Capitol police, however, do have holding cells nearby that presumably could be put to use.  (Apparently the last time the inherent contempt power was used to detain a witness, during the Hoover administration, he was held not in jail but at the Willard Hotel in D..C., which actually doesn’t sound that bad…).

prison cell

Not in the basement of the Capitol

In some ways the inherent contempt power would better further the goals of Congress seeking to investigate a particular issue. The witness detained to coerce compliance with a subpoena may ultimately turn over documents or testify in order to purge themselves of contempt and be released. A witness prosecuted for contempt by the U.S. Attorney, on the other hand, may end up with a criminal charge but that still does not get Congress the information it originally sought. The inherent contempt power of Congress, like that of a court, may help it to coerce a recalcitrant witness to comply with its demands.

On Capitol Hill, they sometimes refer to abolishing the filibuster as the “nuclear option” when it comes to breaking Senate gridlock.  Perhaps bringing back the inherent contempt proceeding should be considered the nuclear option when it comes to contempt of Congress.  In the current partisan atmosphere in Washington, the prospect of Congressional committees trying witnesses for contempt and locking them up is a little bit scary. But it is a well-established power that may rear its head again someday.

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