Now that Michael Flynn has refused to turn over documents under subpoena by the Senate Intelligence Committee, the committee has two main options, It can let it go, or the less likely option, try to hold Flynn accountable.
Odds are against Michael Flynn facing legal consequences for his refusal to comply with a Senate Intelligence committee. The reason: the Senate’s process to deal with this situation is long and complicated. That’s the consensus among legal experts across the political spectrum.
In their detailed analysis, Lawfare’s Susan Hennessey and Helen Klein Murillo identify the following time consuming and burdensome options: inherent contempt authority, the criminal contempt statute.
That’s an unlikely scenario even with Jeff Sessions’ part time recusal on all matters related to the Russia investigation and DOJ’s history on similar matters. Even if Special Counsel Mueller was deemed as the “appropriate United States attorney” on this matter, the odds are against Flynn facing charges. As I said before, Deputy Attorney General Rod Rosenstein is empowered to veto anything that Mueller does. It’s possible that Rosenstein could veto any action Mueller may wish to pursue.
It gets more complicated because jurisdiction is unclear. Typically, matters like this, involving White House officials, would be referred to the DC circuit. But two facts make these less clear cut than in previous cases. For one thing, Flynn isn’t a White House official anymore. Also, a grand jury in the Eastern District of Virginia issued subpoenas to Flynn’s associates.
In the end, however, Hennessey and Murillo conclude this comes down to the DOJ’s willingness to pursue the matter.
How the Committee proceeds may depend both on how much cooperation it anticipates from the Department of Justice—which may depend in large part of whether the relevant official is Mueller or Rosenstein—and on its own calculation about the wisdom of forcing the issue given the newly appointed special counsel. Congress has tools at its disposal, but how it uses them is a strategic calculation.
Buzzfeed’s Chris Geidner concurs.
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.
Politico’s Austin Wright draws a similar conclusion, noting “These routes are long and complicated, and there is no guarantee they will succeed.”
Stanley Brand, senior counsel at Akin Gump, elaborates.
They can go the civil route in the Senate, but that’s a lengthy process. That can take a year or more. They could go under the criminal statute, but that’s sort of unavailing because by the time that gets decided, it’ll be the next Congress.
The bottom line is Flynn is unlikely to face consequences for his refusal to comply with the Senate Intelligence Committees’ subpoena.
The practical limits on the Senate’s ability to enforce its subpoenas doesn’t help Flynn in the long term on more serious charges. However, it could explain why Trump’s version of law and order includes chomping at the bit to re-hire a man who has lied habitually about breaking the law on things Russia. Trump’s repeated praise of Flynn is about two corrupt individuals having each other’s backs – against America.