Do Not Pass Go: The Predictable Results of Subpoena Defiance

“I’m going to be the first one in history to flat out say, I’m not going,” said former Trump campaign associate Sam Nunberg on Monday during an epic media meltdown that included five television interviews on multiple networks.

Nunberg was eager to claim that his defiance of Special Counsel Robert Mueller would earn him a place in history. He also seemed convinced that he would not be thrown in jail for ignoring the subpoena he’d been issued.

A short walk down memory lane shows how wrong he is on both counts.

Susan McDougal, a former business partner of President Bill Clinton, famously chose to go to jail instead of testifying about Clinton before a grand jury during the Whitewater investigation. She spent 18 months behind bars.

On Monday, McDougal told the Washington Post she wouldn’t do anything differently but warned Nunberg that going to jail isn’t easy.

But McDougal’s not the only one who has stood up to a special prosecutor before. In 2005, Judith Miller, who was an investigative reporter at the New York Times, refused to give up the name of a source during the investigation into who divulged the identity of Valerie Plame, an undercover CIA operative. A federal judge held Miller “in civil contempt… for refusing to cooperate with a federal prosecutor’s investigation” and sent her to jail in 2005. Miller spent 85 days in jail.

By Tuesday, after a few hours of on-air counseling from television hosts and legal analysts, Nunberg seemed to have already changed his tune. He told reporters he now planned to cooperate fully with Mueller and would therefore avoid any jail time.

It was hard to watch the spectacle over the last 24 hours — Nunberg seems to be cracking under the strain of investigation and abandonment by the president and those around him. I’m sure the stress of the Russia investigation is massive for many in the Trump orbit. Each person has different coping mechanisms, some more constructive than others. I hope Nunberg got good counsel from his father and attorney last night.

But if Nunberg changes his mind (again) and goes through with his stunt, and winds up behind bars, it’s worth remembering that coercive contempt (i.e., being jailed until one agrees to testify in a criminal case) is not a criminal punishment, and therefore it is beyond presidential pardon power.

Nunberg can take that as some additional free legal advice.  

About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, former Associate Counsel to the President in the White House Counsel’s Office. You can follow him on Twitter (@AndyMcCanse).