No. of Recommendations: 5
I'll take a stab and albaby can come along later to tell why my layman's perspective is wrong.
John deserved jail time. He did fail to respond to subpoena. He later tried to sidestep accountability by offering compliance in exchange for immunity. That the president subsequently asserted executive privilege is not a factor. It might have been if John asserted from the beginning that was his reason for non compliance but without the president actually doing so at the time, I doubt that would hold up.
Man....being called by name in a thread dealing with legal issues? How can I resist!
Anyway, this would be a really tricky law school exam question - but John almost certainly can't be convicted of a crime here, because of John's office. Though not explicitly stated in the hypothetical, John is probably an officer of the Executive Branch, and probably the head of a department. The records being subpoenaed are government records in the custody of the Executive Branch. John is almost certainly not being subpoenaed in his individual capacity.
That makes all the difference in whether John can be found personally criminally culpable. Unlike, say, a private citizen or a local government like a municipality, the Executive is a co-equal branch of government to Congress. As such, it has certain constitutionally legitimate defenses against Congress exercising the subpoena aspect of the Legislative power against it. The Executive Branch has Constitutional arguments to support pushing back on the scope, timing, and substance of Congress trying to assert power over it. Those defenses are strongest if the release of documents to Congress could interfere with the due exercise of executive function (like if Congress tried to subpoena national defense information from Defense, or materials on ongoing negotiations with another country from State, or records on a current investigation from Justice). They are weaker when release of the requested materials to Congress would have no impact on ongoing Executive operations.
So unlike Steve Bannon (for example), a Cabinet-level executive officer would have some colorable defenses against providing government (not personal) records and testimony to Congress - which would almost certainly defeat any personal criminal charges against them. Firstly, and most obviously, they might be right. Their refusal to comply with the subpoena might have been legal, appropriate, and correct under the Constitutional power granted to the Executive. But even if they're not right, the doctrine of qualified immunity gives them enormous protection. Put simply, government officials are allowed to make mistakes about the scope of what is permissible under their offices without being subject to criminal liability, as long as those mistakes are colorable. So even if John were later found to not have been justified in resisting the subpoena, as long as his refusal was colorable he would be immune from prosecution.
We're outside the hypothetical here, but a quick and dirty "gut check" on whether that's the case would be to see how the dispute was subsequently handled. If the fight over the subpoenaed documents was immediately resolved in favor of Congress in a "slam dunk" kind of court decision, then maybe - just maybe - prosecutors might have had a shot a criminal conviction. But if that dispute dragged out over years of court fighting, then John almost certainly was making at least a semi-valid point in resisting the subpoena, making it all-but-impossible that he would have committed a crime in pushing back.
