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Flynn Yet to Honor Congress's Subpoena, Will He be Held in Contempt?

by Countable | 5.18.17

Retired General Michael Flynn, who resigned as national security adviser after 24 days on the job, is yet to honor the Senate Intelligence Committee’s subpoena of documents related to his interactions with Russia. The committee chair, Sen. Richard Burr (R-NC) said Flynn’s attorneys "have not yet indicated their intentions" regarding the subpoena that was issued last Wednesday, but that he would welcome “their willingness to cooperate.”

Should Flynn ultimately choose not to comply with the subpoena, he could face legal repercussions if lawmakers decide to use the tools at their disposal to compel his cooperation.

What are Congress’s subpoena powers?

Congress has the authority to investigate anything that is or could be the subject of legislation or oversight, and as a part of the investigative process they’re allowed to issue subpoenas to compel testimony or the production of documents.

The Supreme Court, in the case Barenblatt v. U.S., ruled that the power to subpoena "is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution." The courts consider Congress’s subpoenas to be protected by the Constitution’s Speech and Debate Clause, so as long as lawmakers act within that power the judicial branch is barred from interfering with the process because judicial remedies can’t be used for “political questions.”

While that all makes congressional subpoenas sound very powerful, they also have their limitations because they’re time-consuming and difficult to enforce. For starters, it can take months or years for the charge to get through the judicial process, and when a session of Congress only lasts two years the political will of members pursuing the charges can weaken when election season comes around. But if the subject of a congressional committee’s subpoena chooses to ignore the request, and lawmakers want the documents or testimony in question then Congress’s first step in the enforcement process is to hold them in contempt.

How does contempt of Congress work?

When they get stonewalled by the subject of a subpoena, a congressional committee has to vote to hold them in contempt to start the process of enforcing the subpoena. If successful, the contempt resolution can then be brought up for a vote in the House or Senate — whichever chamber the committee resides in — and if it passes that gives lawmakers three options:

  • They can instruct the chamber’s sergeant-at-arms to arrest the party in question and bring them to the chamber, where they can theoretically be detained in the Capitol jail although this power hasn’t been used since 1935.

  • They can refer the matter to federal prosecutors at the Dept. of Justice who could then impanel a grand jury that decides whether or not criminal contempt charges are warranted. The penalty for being in contempt of Congress is between one to twelve months in jail and a fine of between $100 to $1,000.

  • They can refer it to federal district court where civil charges can be filed, such as an injunction to require the subject of the subpoena to comply. If the subject still refuses to comply, they can then be held in contempt of court as well.

The process of going through the courts can be very time consuming, and as a result it’s rare for committees, let alone the chamber as a whole, to hold a party in contempt. There have been four parties targeted with contempt of Congress this decade:

Tell your reps what you think should happen as far as forcing Michael Flynn to comply with the subpoena request using the Take Action button.

— Eric Revell

(Photo Credit: Gage Skidmore via Flickr / Creative Commons)

Countable

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