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Sam Nunberg, former campaign adviser for President Trump, has said that he intends to refuse to comply with the subpoena that was issued to him by Mueller’s investigation. Nunberg seems not to take so much issue with the idea of testifying against Trump, whom he is “not a fan of,” as he does spending time going over the emails that he exchanged with Steve Bannon and Roger Stone. He is quoted as saying”I think it would be really really funny if they wanted to arrest me because I don’t want to spend 80 hours going over emails . . . .” Nunberg also said he is planning to appear on Bloomberg TV to tear up the subpoena.
The Mueller investigation issues grand jury subpoenas to obtain interviews and documents. Grand Jury Subpoenas are governed by Rule 17 of the Federal Rules of Criminal Procedure. Rule 17(g) of the FRCP holds that a person refusing to comply with a subpoena may be held in contempt of court. Section 402 of title 18 of the U.S. Code describes when contempt may be considered a crime:
Any person . . . . willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia, . . . . if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted . . . . and shall be punished by a fine under this title or imprisonment, or both.
So, what that says is that if in refusing to comply with a court order one commits an additional crime, they are subject to a fine and imprisonment. But has Nunberg committed a crime? He would if he were to actually follow through with his plan to tear up his subpoena on Bloomberg TV. Section 1519 of Title 18 of the U.S. Code reads:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
So, this law makes destruction of documents related to a federal investigation a crime. Additionally, the mental state written in this statute is pretty broad: one need only intend to “impede, obstruct, or influence” an investigation. If Nunberg is using the destruction to demonstrate his contempt, it is arguable that in so doing that he intended to impede or influence Mueller’s investigation. So, if Nunberg were to refuse to comply with Mueller’s subpoena, and in so doing destroyed his subpoena, he could be charged with criminal contempt, as well as punished for the destruction of the document itself.
Luckily for Nunberg, however, he thought better of this course of action. He conceded late Monday that he would cooperate with Mueller. Considering the possible ramifications of his actions, that seems a wise choice.