Enforcing the January 6 Committee’s Subpoenas

The House Select Committee investigating the January 6 attack on the Capitol is seeking to compel the testimony of Trump administration officials. Former White House chief of staff Mark Meadows and Pentagon official Kash Patel have been subpoenaed and are reportedly “engaging” with the committee. Jeffrey Clark, a Trump Justice Department official who played a key role in internal discussions about potential attempts to overturn the election results, was recently subpoenaed as well. Former Trump advisor Steve Bannon refused to comply with the committee’s subpoena, citing a demand from Trump that he resist on the grounds of executive privilege. In response, the committee is moving to refer Bannon to the Justice Department for prosecution for Contempt of Congress.

Congress has three main tools for enforcing its subpoenas: criminal contempt, inherent contempt, and civil litigation. Each has its strengths and weaknesses. As we saw during the previous administration, subpoenaed witnesses can easily run out the clock with protracted court battles. For example, when the House subpoenaed former White House Counsel Don McGahn in 2019 to testify about Trump’s attempts to interfere with the Mueller investigation, court battles over that subpoena lasted for two years — pushing McGahn’s eventual testimony into 2021 and past the presidential election.

With the January 6 Committee, there’s a real concern that witnesses may be able to delay any testimony until after the 2022 midterm elections. And if the Republicans take back the House in those elections, they will probably drop the investigation so the testimony never happens at all.

If the Select Committee wants to get to the bottom of what happened on January 6 before it runs out of time, it needs to be much more aggressive about responding to stonewalling from Trump and his former aides. The criminal referral of Bannon is a good step – but it’s only a start. Congress needs to be moving forward on multiple fronts to enforce its subpoenas.

Coercion vs. Punishment

If a witness defies a Congressional subpoena, different remedies pursued by Congress will have different consequences. Sometimes contempt is about coercion and sometimes it’s about punishment.

Civil contempt is about coercion. If I refuse a court order to testify, for example, the judge can find me in contempt. She may put me in jail, or impose a daily fine. The purpose is to coerce my compliance with the court’s order. Lawyers often say of this kind of contempt that the witness holds the keys to his own jail cell. I can purge myself of the contempt (and gain my freedom or stop the fines) by agreeing to testify. Civil contempt is not a criminal conviction, and once the witness complies (or the contempt otherwise lapses because, for example, the relevant proceeding ends) there are no further consequences.

A prosecution for criminal contempt, by contrast, is primarily about punishment. If convicted I may be fined and/or sent to prison. I will have a criminal conviction on my record, with all the collateral consequences that entails. But the prosecution itself does not compel me to comply with the original subpoena. It may take place even long after the relevant proceeding has ended and my compliance is no longer possible. And if I were convicted and then decided to comply with the original subpoena, my conviction would still stand – I cannot purge myself of the criminal contempt.

Of course, the threat of a criminal prosecution might coerce a reluctant witness into compliance. And seeing others prosecuted might persuade witnesses that they should comply. But coercing compliance is not a part of the criminal remedy itself.

Steve Bannon
Steve Bannon

Bannon and Criminal Contempt of Congress

That brings us to Steve Bannon. As of this writing, the House is planning to pass a resolution referring Bannon for prosecution for criminal contempt of Congress. The contempt of Congress statute, 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 the full House finds a witness in contempt, the matter will be referred to the U.S. Attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action.”

As I discussed in this post, this statute has proven to be relatively ineffective. In most cases, attempts to apply it have involved the House referring a contempt citation of an administration official to the U.S. Attorney’s Office that is part of that same administration. Those U.S. Attorneys have been reluctant to prosecute, particularly if the administration is claiming that resistance to the subpoena is justified by executive privilege. Administrations of both parties have taken the position that, despite the “duty” language, the Department of Justice still has discretion over whether to prosecute.

Recent examples of administration officials referred for contempt include IRS official Lois Lerner and attorney general Eric Holder during the Obama administration, and attorney general Bill Barr and commerce secretary Wilbur Ross during the Trump administration. None of these cases resulted in a prosecution by the U.S. Attorney who was part of the same administration. During the Reagan administration, EPA administrator Anne Gorsuch (mother of the current Supreme Court justice – small world) was referred for contempt by the Democratic House to the Reagan-appointed U.S. Attorney, who also declined to prosecute.

A Strong Candidate for Criminal Contempt

Bannon’s case is different. He obviously is not a member of the Biden administration, so the Department of Justice would not face that conflict. Although Trump has claimed that some records sought by the January 6 committee are covered by executive privilege, the Biden administration has declined to assert that privilege. Even if there were potential privilege claims in connection with some former Trump officials, Bannon was not a member of the Trump administration after 2017. There is no colorable claim of executive privilege at all when it comes to Bannon and the events of January 6. And finally, although claiming privilege might allow you to decline to answer certain questions, it doesn’t excuse failing to show up to the hearing at all, as Bannon did.

The Bannon case thus is teed up better than any case in recent memory for an effective use of the criminal Contempt of Congress statute. There appears to be no good reason why the U.S. Attorney’s office would not proceed. And the case would be relatively simple to indict – you could probably do the grand jury presentation in an afternoon.

But recall that, as discussed above, the prosecution would not result in compelling Bannon to appear before the committee and testify or produce documents. It would merely punish him for his defiance of the subpoena. So although punishing Bannon might be completely appropriate, it does not serve the committee’s ultimate goal of determining what happened on January 6.

In addition, the penalties for Contempt of Congress are not very hefty – a maximum one year in jail and $1,000 fine. Bannon might decide it’s worth it to risk a few months in jail in order to be hailed as a martyr in Trump world.

The bottom line is that although Bannon’s prosecution seems entirely appropriate, Congress needs to pursue other remedies as well if it wants to get his testimony.

Congress’s Inherent Contempt Power

Since the early 1800s the Supreme Court has recognized that Congress has an inherent contempt power, similar to that of a court, to punish those who defy its orders. Using this power Congress can fine a witness, or order the witness detained, until the witness complies with a subpoena. As with civil contempt of court, the purpose is compulsion, not punishment – the witness could purge himself of the contempt by agreeing to comply with the subpoena.

In theory, then, when faced with a witness like Bannon who defies a subpoena, Congress could find him in contempt, impose fines, or even send the House Sergeant at Arms to take him into custody. In the current polarized political environment it may not be a good idea to start down the road of Congress unilaterally locking up political opponents for contempt. But it could impose escalating fines until the contemnor agrees to comply.

Congress’s inherent contempt power has long been dormant; the last time it was used was in the 1930s during the Hoover administration. This is probably because the process has been deemed too cumbersome and unwieldy, requiring Congress to get involved in what are essentially trial proceedings. But the option remains, if Congress chooses to revive it.

There currently is no procedural framework in place for Congress to pursue a contempt resolution. But this could be fixed quickly in the House by simply amending the House rules to spell out the process. This would not require legislation and therefore would not be subject to a potential Senate filibuster.

Representative Ted Lieu has a proposal to do just that, the “Congressional Inherent Contempt Resolution.” It provides a process for negotiating with witnesses who refuse to comply with a subpoena, holding hearings where the witness could be represented by counsel, preparing reports, having a committee vote on a contempt resolution, and then presenting that resolution to the full House. Under Lieu’s proposal, if the full House approved the contempt resolution the witness could be fined a maximum of $100,000.

The Problems with Inherent Contempt

Although Lieu’s resolution would be useful for putting a process in place, it also highlights the key problem with inherent contempt: it’s slow and cumbersome. If a witness in court is found in contempt, the judge can immediately order the marshal to take the witness into custody or start imposing fines. There is an instant coercive effect.

With inherent contempt in Congress, however, there are going to be resolutions, hearings, committee debates, reports, and multiple votes. Nothing about that process is going to move swiftly. It lacks the immediate coercive effect that makes contempt of court so effective.

The other problem with the inherent contempt of Congress process, at least when it comes to claims of executive privilege, is that it relies on Congress itself to decide the merits of those claims. But Congress is an interested party in the legal fights with the executive branch over the privilege. No one gets to be the judge and jury in their own case.

All of this means that any attempt by Congress to exercise its inherent contempt power will almost certainly end up in court. The subpoenaed party will ask a judge to intervene to stay the Congressional proceedings and decide claims of privilege, and will mount legal challenges to any fines or proposed detention.

A key advantage of inherent contempt over a referral for criminal contempt is that Congress is not dependent on the executive branch to decide whether to pursue the case. It puts Congress back in control of its own contempt process. That alone may be reason enough to bring it back.

But even if Congress does resurrect inherent contempt, it seems inevitable that any attempts to use that power ultimately will be resolved in the courts, not on the floor of Congress. And if you are going to end up in court anyway, it would save a lot of time just to go there in the first place.

Civil Litigation to Enforce the Subpoena

The third way for Congress to enforce a subpoena is to file a civil lawsuit seeking to compel compliance. For example, when Trump White House counsel Don McGahn refused to testify before Congress based on Trump’s claim of “absolute immunity” from testimony for his officials, Congress filed a lawsuit asking the courts to rule there was no such immunity and ordering McGahn to testify.

If a civil lawsuit to enforce a subpoena is successful, then compulsion of the witness comes back into play. A court may order the witness to comply with the subpoena. If the witness continues to refuse, then contempt of court – rather than contempt of Congress – is an option. The court could order the witness detained to coerce compliance, or could impose daily fines until the witness obeys the court’s order.

The biggest drawback to this approach, as evidenced by the McGahn case, is delay. Court proceedings and appeals can easily stretch over a year or more. It’s relatively easy for a witness to stall until after the Congress that issued the subpoena has expired. In this case, if the House changes hands in 2022, that could result in the entire dispute simply going away.

The best way to enable Congress to enforce its subpoenas would be to create a fast-track process for such lawsuits to proceed through the courts. Congress could enact legislation to require the courts to establish procedures for expedited handling of fights over Congressional subpoenas. Proposed legislation pending in Congress called “The Protecting our Democracy Act” includes establishing such a fast-track process. Of course, passing that bill would require action by both the House and the Senate – including overcoming any Senate filibuster. But who knows, maybe enough Republicans could be convinced to support such legislation, if they are thinking forward to when they will control Congress again.

Legislation is not necessarily required. Courts can fast-track these cases on their own, if they have the will. The judges set the schedule. During the Watergate era we went from a subpoena for Nixon’s Oval Office tapes to a Supreme Court decision upholding that subpoena in the space of only a few months. But recent history indicates that doesn’t usually happen. In the absence of legislation requiring a fast-track process, it’s all up to the judges. The judiciary could play a positive role here, but of course there’s no guarantee that it will.

Lt. Col. Oliver North

Fifth Amendment Issues

Even if a court ruled that Bannon (or another witness) could not rely on executive privilege, he still might end up not testifying. Given the likelihood that crimes were committed in connection with organizing the January 6 riot, Bannon and others might invoke the Fifth Amendment privilege against self-incrimination.

Congress does have the power to immunize witnesses and compel them to testify. It would probably be reluctant to do so, in order to avoid an Oliver North situation. In 1987, over the objections of independent counsel Lawrence Walsh, Congress immunized North to compel him to testify about the Iran-Contra scandal. That resulted in his later criminal convictions being reversed when the D.C. Circuit ruled that prosecutors could not prove his immunized testimony did not influence his trial. Congress was left with egg on its face, having torpedoed the prosecution of one of the main Iran-Contra bad actors.

Congress would need to tread very carefully here. It could consult with the Department of Justice to see whether there was any reasonable likelihood of a criminal prosecution. If DOJ had no objection, then immunizing witnesses might be appropriate. But absent consent from DOJ, Congress will likely — and rightly — avoid any grants of immunity.

Conclusion

The best approach for Congress to follow would be to pursue both fast-track civil litigation to enforce its subpoenas and referrals for criminal contempt where appropriate. The criminal proceedings can serve to punish those who defy a subpoena and to deter others from doing so, while the civil litigation seeks to compel compliance. In the (likely) absence of fast-track legislation, attorneys for the House need to impress upon judges the need for speed. Members of Congress, the public and the press also could join in calls for expedited review. It’s not a great solution, but for now it is the least-bad option.

There is an overwhelming national interest in determining exactly what led to the January 6 riot so that similar threats to our democracy can be avoided in the future. Maybe enough judges can be persuaded that they need to move quickly.

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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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