The Senate Intelligence Committee’s subpoena of Michael Flynn’s private documents sets up a potential battle between the legislative and executive branches over whether the Justice Department will enforce Congress’s will.
The Justice Department is charged with enforcing congressional subpoenas. But it is led by Attorney General Jeff Sessions, and the Flynn subpoenas are related to investigations of Russia’s involvement in last year’s election, a sore spot for President Trump.
Democrats are already making their fears known.
“I worried about that from the start, the fact that we don’t have cooperation between the executive branch and the legislative branch raises questions about how far we can go,” said Senate Democratic Whip Dick Durbin (Ill.), a senior member of the Judiciary Committee, which has jurisdiction over the Justice Department.
The Intelligence Committee this week subpoenaed Flynn for documents relevant to its Russia investigation. It is the first time it has issued a subpoena since the congressional inquiry into the attacks of Sept. 11, 2001, according to NBC News.
The subpoena of Flynn’s documents is only the start of the battle over sensitive documents.
The Senate Intelligence Committee has asked more than a dozen individuals, agencies and organizations to preserve records related to its investigation.
President Trump’s tweets about possible recordings of conversations with former FBI Director James Comey, who he fired this week, adds another layer.
If there really are tapes, they could become the subject of a subpoena.
Rep. Adam Schiff (Calif.), the senior Democrat on the House Intelligence Committee, on Friday demanded that Trump turn over to Congress any taped conversations with Comey that he may have.
Mark Gitenstein, a former Democratic chief counsel to the Senate Judiciary Committee and former counsel to the Senate Intelligence Committee, said the looming fight reminds him of the standoff between President Nixon and the Senate Watergate committee in the early 1970s.
Gitenstein, who worked for former Sen. Sam Ervin (D-N.C.), who chaired the Senate’s Watergate investigation, remembers asking his boss in the midst of the inquiry, “What will happen if the Justice Department doesn’t enforce your subpoena, your Watergate subpoenas.”
“He said, ‘Theoretically, we in Congress can hold them in contempt and enforce the contempt order ourselves. We can arrest the person and put them in jail in the basement of the Capitol if we have to,” Gitenstein recalled.
But while Gitenstein said such a scenario is theoretically possible, it hasn’t been done in at least 150 years.
“If the executive branch refuses to enforce the policy of the legislative branch, that’s a true constitutional crisis,” he added.
Senate Democratic aides say this underscores the need for a special prosecutor, which Sen. Mark Warner (Va.), the senior Democrat on the Senate Intelligence Committee, called for this past week.
Senators had assumed before this week that the FBI would be doing most of the heavy investigative lifting in finding out whether members of Trump’s campaign or transition team had special knowledge of Russian efforts to influence the election.
But the FBI’s role is now in limbo in the wake of Trump’s surprise firing of Comey.
As Congress awaits Trump’s choice for a replacement, there’s a dawning realization that the Senate investigation may have to shoulder more of the burden.
Democrats don’t take for granted that Sessions will have Congress’s back, especially since he recommended Comey’s dismissal. They argue that Sessions acted improperly because he created the appearance of interfering in an investigation after earlier this year promising to recuse himself from oversight of the probe.
If Flynn or other former Trump advisers refuse requests for information or testimony, Congress could declare them in contempt. But enforcing the contempt finding would fall to the Justice Department.
The other option is for the Senate to hire its own lawyers and directly petition the U.S. District Court for the District of Columbia to enforce a subpoena, according to an aide to a Democratic member of the Senate Judiciary Committee.
But legal experts say that route could take months if not years and note the executive branch is ultimately in charge of enforcing the rulings of a district judge.
Another major limitation is the D.C. district court does not have jurisdiction to decide civil enforcement of a Senate subpoena issued to “an officer or employee of the federal government acting in their official capacity,” according to a Congressional Research Service report from April 10, 2014.
Charles Fried, a professor at Harvard Law School and a former solicitor general of the United States, says that practically speaking the Congress doesn’t have much recourse if the Justice Department refuses to enforce a contempt citation.
“They can declare various officials in contempt, Fried noted but ultimately “Congress has no power of prosecution.”
“I don’t know if they have a jail. They might put somebody in the congressional jail, that’s what [the British] parliament does — can do,” he added. “But prosecution for crime has to be the Department of Justice.”