Someone should explain to Sam Nunberg that federal subpoenas are not friend requests. They are not suggestions. They are commands to appear before a grand jury investigating whether there is probable cause to issue an indictment in a criminal case.
Special counsel Robert Mueller has subpoenaed Nunberg, a former campaign staffer to President Donald Trump, and in a bizarre round of TV appearances Monday, he grappled publicly with the order, asserting at times he would not appear and then maybe he would.
At one point when CNN’s Gloria Borger asked whether he would testify before a grand jury, he said: “Screw that. … Why do I have to go? Why? For what?”
He later told CNN’s Jake Tapper, “I’m not cooperating. Arrest me. You want to arrest me? Arrest me.”
If one were inclined to extend Nunberg the benefit of the doubt and assume he is more absurdly misguided than criminally defiant, his apparent confusion would be understandable. Over the course of the parallel congressional and criminal investigations into potential collusion between members of the Trump presidential campaign and Russia, many have watched in awe as witnesses have flouted or avoided congressional subpoenas without consequence.
Although capable of punishing subpoenaed witnesses who fail to appear, refuse to answer questions or assert the inapplicable executive or attorney-client privilege, Congress has chosen instead to bark its dismay to the media like a toothless dog.
But Nunberg’s subpoena wasn’t issued by Congress; it was issued pursuant to a criminal grand jury probe by Mueller. Thumbing one’s nose at a grand jury subpoena does not lead to a figurative slap on the wrist. It leads to the handcuffs for contempt of court. Just ask Susan McDougal: She refused to answer a federal grand jury’s questions in the Whitewater inquiry in 1996 and was sent to prison.
Perhaps Nunberg has listened to the bald assertions of Trump’s counsel that one is able to dictate the terms of any meeting with Mueller’s investigative team.
Foolhardy crayons can’t draw lines in the sand. Like the President, Nunberg is in no position to limit Mueller’s probe or the reach of the grand jury, and certainly not on the basis that he has already spoken with investigators outside of the grand jury.
It is not peculiar for a federal investigator who has already met with a witness outside the presence of a grand jury to have that witness then testify in front of a grand jury. It is routine. Presumably, Mueller issued the subpoena because Nunberg’s previous statements to investigators provided relevant and important information that prosecutors want chiseled in the stone of a grand jury transcript, not in the column of an investigator’s spiral notebook.
After all, grand jury testimony can be impeached at trial, and thus its existence can be used as leverage to compel truthful (or at the very least consistent) testimony from that same witness at trial. It is protection against a recanting witness. It is the grand jury that can compel the production of documents, arguably Mueller’s most powerful asset.
In fact, the more than five-hour duration of Nunberg’s meeting with Mueller’s team has zero impact on the subpoena power of the grand jury. For all intents and purposes, his interactions with Mueller’s team were voluntary. While not advisable, he could have refused those meetings. He didn’t. Now he’d like to reclaim any semblance of power that he relinquished. He can’t.
Nunberg’s questions as to why he must speak with the grand jury after already meeting with investigators are equal parts rhetorical gambits and bids at self-preservation. Sage attorneys have likely already informed him that, barring any valid — albeit unlikely — assertion of privilege or “pleading the Fifth,” he must honor the subpoena or face jail time.
Those who praise loyalty over logic will pat him on the back for publicly putting up a fight. But his feigned attempts at appearing tough did nothing more than poke a formidable bear with a bayonet. And unlike Congress, this bear has all of its teeth.