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If Michael Flynn refuses to comply with congressional subpoenas, that almost certainly wouldn’t be a reason he ends up in jail.
The Senate’s intelligence committee had asked Flynn — President Trump’s former national security adviser — in April to turn over documents relevant to the committee’s investigation into Trump campaign associates’ connections to Russia.
When Flynn’s lawyer, Robert Kelner, said Flynn would not be turning over the documents, the committee did what any good committee would do: It issued a congressional subpoena for the documents.
On Thursday morning, the chair of the committee, Sen. Richard Burr, announced that Flynn would not be complying with the Senate’s subpoena — although he later walked that back by saying that he’d not yet gotten a “definitive answer ” from Flynn’s lawyer.
Burr’s initial announcement prompted many folks on Twitter to say the move meant that Flynn could end up in jail: contempt of Congress!
They cite a criminal statute and say he could be put in jail for up to a year!
Technically true, but … here’s the issue: We’re a long way off from that and it’s not likely to happen, as suggested in a Politico report earlier this week.
The Justice Department would have to prosecute the case — something exceptionally unlikely to happen. And that only could happen if the Senate voted to hold Flynn in contempt and forward the matter to the US Attorney’s Office for prosecution.
That itself rarely happens: The last criminal prosecution of a current or former executive branch official for contempt of Congress was in 1983, when Rita Lavelle faced a contempt prosecution in relation to the Environmental Protection Agency Superfund scandal that took down then-EPA administrator Anne Gorsuch Burford (whose son is now-Justice Neil Gorsuch).
In that case, a 413-0 contempt vote by the House led to prosecution by the US Attorney. Even there, however, Lavelle ultimately was convicted of perjury for lying to Congress — not under the contempt statute.
Sure, Congress holds people in contempt. It happens not irregularly — a few times each administration (in normal times, that is) and generally with a more partisan vote than in the Lavelle matter. In 2014, the House voted 231-187 to hold former IRS commissioner Lois Lerner in contempt for refusing to cooperate with the investigation into the agency’s targeting of conservative groups.
But, the Justice Department doesn’t need to prosecute a contempt citation forwarded to it — which was the decision made as to Lerner. Similar decisions against prosecution were made when the House held George W. Bush administration officials — Josh Bolten and Harriet Miers — in contempt.
Congress could seek civil enforcement of the subpoena, a step the House tried to take against former Attorney General Eric Holder after he was held in contempt of Congress in relation to the “Fast and Furious” operation scandal. The process took years, however, and the judge ultimately declined to hold Holder in civil contempt — which would have resulted in fines being assessed against Holder.
There also is, technically, an “inherent” contempt power that Congress itself can exercise to enforce its interests. The power has not been exercised in the modern era, however, and the move — detailed in a recent congressional report as having the Sergeant-at-Arms bring in a person, having the House or Senate try the person, and imprisoning the person in the Capitol until he or she fulfills the congressional request — almost certainly would end up in court. (But it sounds very 2017, it’s true.)
Kelner has not responded to multiple requests for comment about his client’s plans.