But criminal prosecutions for contempt are also rare. The Justice Department can decline to pursue cases against those Congress holds in contempt, as it did in 2012 when it refused to prosecute then-Attorney General Eric Holder. The House Oversight Committee had previously cited him for withholding documents about the controversial Fast and Furious program, which it was investigating. Justice Department officials pointed to the Obama administration’s invocation of executive privilege, which shields certain categories of executive-branch communications from judicial and legislative scrutiny, when declining to take any further action against Holder.
Attorney General Jeff Sessions recused himself from Justice Department decisions related to the federal Russia investigation in March, and Deputy Attorney General Rod Rosenstein appointed former FBI Director Robert Mueller as special counsel to oversee the probe and any related matters last week. That likely leaves Mueller to decide whether to pursue criminal charges against Flynn if Congress formally cites him for contempt.
The appointment of a special counsel, Flynn’s lawyers wrote, “creates a ‘reasonable cause to apprehend danger,’ giving rise to a constitutional right not to testify,” paraphrasing a Supreme Court ruling.
But a criminal contempt case against Flynn is unlikely after his invocation of the Fifth Amendment, which protects Americans against compelled testimony that could incriminate them in criminal proceedings. In the 2000 case U.S. v. Hubbell, for example, the Supreme Court sided with a witness in then-Independent Counsel Kenneth Starr’s Whitewater probe who was ordered to provide documents later used to convict him despite invoking the Fifth Amendment. The justices ruled that the government’s broad subpoena had unconstitutionally forced the defendant to provide documents that helped secure his conviction.
“It was unquestionably necessary for respondent to make extensive use of the contents of his own mind in identifying the hundreds of documents responsive to the requests in the subpoena,” Justice John Paul Stevens wrote for the majority. “The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.”
Hubbell was among the cases cited by Flynn’s lawyer in their letter to the committee to justify not testifying. “Were General Flynn to provide responsive documents, he would be providing compelled testimony about the documents’ existence, custody, and authenticity,” they wrote. “This is precisely the sort of testimonial information that the Fifth Amendment privilege is designed to protect from compelled disclosure.”
Talking to reporters last week about the prospect of Flynn’s refusal to cooperate, Senate Intelligence Committee Chairman Richard Burr didn’t offer any hints about a potential citation. “I’m not going to go into what we might or might not do,” the senator said. “We’ve got a full basket of things we might want to test.”