Just got back from a trip abroad. Did I miss anything? I thought my law school classmate Jim Comey could fill me in on the latest, but for some reason my emails to him keep bouncing back . . .
I know, I’m hilarious. Ok, let’s take a look at the controversy du jour, namely former National Security Advisor Michael Flynn’s decision to invoke the Fifth Amendment in response to a document subpoena from the Senate Select Committee on Intelligence (SSCI). This has led to a flurry of speculation as to what SSCI or the Senate might do next.
For regular readers of Point of Order, the issues here should be pretty familiar. There is no Fifth Amendment right to refuse to produce documents based on their potentially incriminating content, but under certain circumstances a subpoena recipient can refuse to comply on the ground that the act of producing the documents would itself be testimonial in nature. This “act of production” doctrine applies when the subpoena implicitly compels the recipient to communicate that the responsive documents exist, are authentic and are in the recipient’s possession or control.
The committee’s subpoena requires General Flynn to produce, among other things, “all communications records, including electronic communications records such as e-mail or text messages, written correspondence, and phone records, of communications that took place between June 16, 2015, and 12pm on January 20 2017, to which you and any Russian official or representative of Russian business interests was a party.” Flynn’s lawyers contend that the broad sweep of this request shows that the committee lacks prior knowledge of “whether responsive exist, who may possess them, or where they are located.” Thus, by producing documents Flynn would be testifying regarding the existence and authenticity of these records. Moreover, Flynn’s production of responsive documents would require him to testify implicitly regarding his knowledge of who is a “Russian official or representative of Russian business interests.”
Without having studied the matter in any detail, it strikes me that Flynn seems to have at least a plausible act of production objection here. This does not necessarily mean, however, that he would ultimately prevail in litigation. The act of production doctrine is technical and fact specific, and its contours have yet to be clearly spelled out in the case law. Furthermore, to the extent that Flynn has responsive documents that belong to a collective entity and are not simply his own individual documents, the privilege would be inapplicable. Thus, SSCI might reasonably conclude that Flynn’s objection should be rejected on the merits, in whole or in part, or at least that its validity should be tested in court.
What, then, would the committee’s options be? One possibility would be for the committee and the Senate to hold Flynn in criminal contempt, and refer the contempt citation to the U.S. Attorney for the District of Columbia for presentation to the grand jury pursuant to 2 U.S.C. § 194. This law on its face requires the U.S. Attorney to present the contempt matter to a grand jury, but the executive branch has long taken the position that it may disregard this mandatory language, at least in cases where Congress seeks to obtain information which the president has determined to be protected by executive privilege. An unfortunate precedent set in the last administration extends this position to cases where the U.S. Attorney simply believes Congress’s legal position is wrong, even if no question of executive privilege is presented. As I explained in that case (involving the contempt charge against Lois Lerner): “Essentially the U.S. Attorney’s office is reserving the right to make its own independent judgment about the legitimacy of a congressional contempt citation, even if that means resolving a close legal question in a way that protects a witness in an investigation that could embarrass the administration he serves.” Based on that precedent, the executive could refuse to present the Flynn contempt to a grand jury.
The matter is further complicated by the appointment of a special counsel (it turns out that quite a bit happened while I was gone) to investigate the Russia matter. One would think that the special counsel, Robert Mueller, would exercise jurisdiction over any Flynn contempt referral or, at the least, would have to sign off on how the case was handled. This makes it less likely that the Flynn prosecution would simply be dropped like the Lerner case. On the other hand, it may not make it more likely that SSCI will get the documents it is seeking, particularly in a timely fashion. Mueller’s incentive would be to use the possibility of a Flynn indictment for congressional contempt as leverage to advance the priorities of his own criminal investigation. He may have little interest in helping the committee with its investigation (or may actually prefer that the committee’s investigation be halted so as not to interfere with his own).
SSCI may prefer, therefore, to look to an alternative method of enforcing its subpoena. Under 28 U.S.C. § 1365, a Senate committee can bring a civil enforcement action to enforce a subpoena. Under this mechanism, if a subpoena recipient fails to comply with a subpoena from a Senate committee or subcommittee, the committee reports a contempt resolution to the Senate, which may then adopt a resolution directing the Senate Legal Counsel to bring the enforcement action in federal court. See 2 U.S.C. §§ 288b, 288d.
The Senate rarely uses this civil enforcement method, in part because there is an exemption for subpoenas directed to executive branch officials who assert a governmental privilege or objection. That exemption, however, is inapplicable to Flynn’s case, and thus the Senate is free to use it to obtain a federal court ruling on the validity of his Fifth Amendment objection. One downside to this method of enforcement is that it will take some time (e.g., it almost certainly could not be resolved before 2018). A civil enforcement action the Senate brought last year, however, was resolved relatively quickly, within about 6 months of the action being filed by Senate Legal Counsel. (Here is a good summary, ironically written by Flynn’s counsel, of the court’s decision in that case). There is no way to guarantee that a case against Flynn would proceed that quickly (in fact, it probably wouldn’t), but there is no also reason to believe that a criminal contempt proceeding would move any faster. And civil contempt is generally a better method of resolving good faith legal disputes than is criminal contempt. Thus, all in all, it seems to me that a civil enforcement action would be the better method of enforcement here.
In a saner world, there would be another option that the Senate should seriously consider. Any Senate committee can grant immunity by a two-thirds vote of its members (or the Senate as a whole can grant immunity by a simple majority). Although there is a procedure that must be followed to complete the grant of immunity (see 18 U.S.C. §§ 6002, 6005), ultimately SSCI has the power to overcome Flynn’s Fifth Amendment privilege if a bipartisan supermajority of the committee wishes to do so. Although the committee could grant immunity just for the act of production, under current law the consequences would probably be little different than granting Flynn full testimonial immunity (in either case it would be nearly impossible to prosecute him for crimes related to the subject of the committee’s investigation, though he could still be prosecuted for perjury or contempt were he to fail to fully and truthfully respond to the committee’s inquiries). If one believes that obtaining the full truth regarding the Russia investigation is a matter of the highest national priority, it is worth considering whether getting General Flynn’s documents and testimony is more important than preserving the option of prosecuting him.
As a practical matter, however, the Senate almost certainly will not give this serious consideration. The special counsel, whose mission is focused solely on criminal enforcement, would vigorously object to the Senate granting immunity to Flynn. Senators would not want to be seen as responsible for letting Flynn escape criminal punishment, even if this means that SSCI’s investigation is substantially slowed or halted. One of the unfortunate consequences of appointing a special counsel in these circumstances (not the only one, to be sure) is that the public’s interest in a full and expeditious investigation of the Russia matter will take a back seat to the needs and inclinations of the special counsel and the criminal justice system.
So with regard to General Flynn’s refusal to comply with SSCI’s document subpoena, it is likely to be a civil enforcement action or nothing.