Flynn Refuses To Comply With Congressional Subpoena, Invokes Fifth Amendment Rights

Lt. General Michael Flynn is declining to comply with a Congressional subpoena regarding the Russia investigation, and invoking his rights under the Fifth Amendment.

Retired Lt. General Michael Flynn, Donald Trump’s former National Security Adviser who was forced to resign after it was revealed that he had lied to the transition team and to Vice-President Pence regarding his contacts with Russia’s Ambassador to the United States, has stated publicly that he will not comply with a Congressional subpoena and will instead seek to invoke his right to remain silent under the Fifth Amendment:

WASHINGTON — Michael T. Flynn, President Trump’s former national security adviser, has rejected a subpoena from senators investigating Russian interference in the 2016 election and instead invoked his right against self-incrimination, a person familiar with his decision said Monday.

Mr. Flynn had been ordered by the Senate Intelligence Committee to hand over emails and other records related to any dealings with Russians. His decision to invoke his Fifth Amendment right puts him at risk of being held in contempt of Congress, which can result in a criminal charge.

It is up to lawmakers to decide whether to pursue that path. It was not immediately clear how the committee’s leaders would respond, though Senator Richard M. Burr of North Carolina, the panel’s Republican chairman, signaled late last week that it might not take that route.

Mr. Flynn’s decision was first reported by The Associated Press.

Mr. Flynn’s legal issues have been a problem for the White House from the start. He is under scrutiny by congressional committees, federal law enforcement officials and the Pentagon’s inspector general for his ties to Russia and Turkey while advising the Trump campaign and then serving as a senior administration official with access to the top secrets of the United States and influence over national security decisions.

The Trump transition team was told weeks before the inauguration that Mr. Flynn was under federal investigation, The New York Times reported last week. White House officials have declined to comment.

As in previous cases, is important to remember that seeking the protection of the Fifth Amendment cannot be interpreted as an admission of guilt by a Court, and it should not be interpreted in that manner by members of the general public. The Fifth Amendment privilege is among the most important in the Constitution, and it is one that is available to people who are asked to testify in public and who believe that their testimony could be used as evidence against them in an ongoing or subsequent investigation. Indeed, it would be malpractice for an attorney representing such a person to fail to advise them of the wisdom of invoking their Fifth Amendment rights. Given this, speculation regarding Flynn’s guilt or innocence would be entirely irresponsible at this time.

Flynn’s move is hardly a surprise, of course. He is the apparent focus of an investigation into Russian meddling in the Presidential election and the Trump campaign’s contact with Russian agents during and after the campaign. Thanks to extensive ties to Russian media and other interests both before and after becoming a formal part of the Trump campaign, it’s obvious that Flynn was going to be at the center of that investigation along with figures such as Carter Page, Paul Manafort, and others who have been a close part of the Trump campaign at some point or the other. Additionally, Flynn is further tied into the investigation by virtue of the fact that President Trump allegedly asked James Comey, who was still serving as F.B.I. Director, to drop the investigation into Flynn at a dinner that took place just one day after Flynn had formally resigned his position at the White House. Finally, in a matter that is seemingly separate from the Russia investigation, reports have claimed that Flynn failed to register as an agent of the Turkish Government at the time when he was being paid by that government to lobby on its behalf and that Flynn had apparently had a role in policy making inside the Trump team regarding Kurdish rebels that was implicated directly by his work for the Turkish Government. It has also been revealed that the Trump transition team was aware of the fact that Flynn was under investigation at the time he was offered the position of National Security Adviser. Given all of this, and the fact that anything he says to Congress or provides in the form of documents in response to a subpoena could potentially be used against him in the investigation and any subsequent prosecution, the fact that he’s invoking his rights under the Fifth Amendment is not at all surprising.

At the same time, though, it’s important to recognize the context in which the privilege against self-incrimination is being invoked in this case, and it’s one which distinguishes it to some extent from the normal invocation of the privilege. In most cases, the Fifth Amendment’s protection against self-incrimination is invoked when someone is being asked or compelled to testify in public regarding a pending or ongoing investigation or a situation that could develop into an investigation of which they are an actual or potential target. In those case, the invocation falls within the traditional category that most Americans are used to, such as the situation faced with former IRS employee Lois Lerner invoked her right against self-incrimination when she was called before a House committee investigating that matter. While there was some question at the time regarding whether or not she had either properly invoked the privilege, or waived it, by making a statement prior to invoking her rights in which she said she had done nothing wrong. Many Members of Congress took the position that Lerner had waived her rights, even though the arguments in favor of that position were rather weak, to say the least. Ultimately, Congressional efforts to hold Lerner in contempt were thwarted when the Justice Department determined that Lerner had not waived her rights and could not be compelled to testify before Congress or punished for refusing to do so absent immunity.

In this case, Flynn was not being called on to testify and the subpoena in question was not requesting his testimony before the Committee, at least not yet. Instead, the subpoena consisted solely of a request for documents related to the investigation. Ordinarily, such a subpoena is not covered under the Fifth Amendment because it is not deemed to be testimonial. However, as the Supreme Court recognized in United States v. Hubbell, a 2000 case involving charges that had been brought against Clinton confidant Webster Hubbell related to the Whitewater case based on documents that he had provided in response to the subpoena. In its decision overturning Hubbell’s conviction, the Supreme Court ruled on the so-called Act of Production Doctrine. Under that doctrine, the production of documents, even though not ordinarily entitled to a Fifth Amendment protection, could have a “testimonial aspect” if the act of production gives the government information it doesn’t already have regarding the existence, custody, or authenticity of the documents in question. In their letter to the committee, which is embedded below, Flynn’s attorneys argue that this is precisely the case in this situation. Whether the argument succeeds could well depend on what a Court has to say in the event the committee chooses to attempt to hold Flynn in contempt for failing to comply with the subpoena.

Here’s the letter from Flynn’s attorneys to the Senate Intelligence Committee:

Flynn Letter to Senate Intelligence Committee by Doug Mataconis on Scribd

FILED UNDER: Congress, Law and the Courts, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. gVOR08 says:

    Invoking the Fifth is, indeed, not an admission of guilt. That said, I applaud cable news, which seems to have his and Trump’s statements to the contrary almost on continuous loop. At some level hypocrisy should be a federal crime.

    Lock him up!

  2. Mark Ivey says:

    The General can always catch a plane flight to Moscow if the s**t really hits the fan..

  3. Mr. Bluster says:

    test

  4. Mikey says:

    And what does Flynn’s former boss think about pleading the Fifth…hmmm…well, there’s this from last September:

    “The mob takes the Fifth Amendment. If you’re innocent, why are you taking the Fifth Amendment?”

    So “taking the Fifth Amendment” is not only an admission of guilt, it’s a direct association to the Mafia. Good to know.

  5. KarateDeathCar says:

    While evoking the fifth isn’t an admission of guilt, it sure looks like someone’s keeping secrets. Evoking the fifth as an excuse not to testify, das vadanya comrad, see you in the gulags.

    That or Trump will just pardon him.

  6. Mr. Bluster says:

    Legal experts had said Flynn was unlikely to turn over the documents without a grant of immunity because doing so might compel him to waive some of his constitutional protections.

    Will the real Michael Flynn please stand up and put your hands behind your back so we can cuff you.

  7. Scott says:

    Apparently, Flynn lied on his SF86, Questionnaire for National Security Positions on his foreign income and employment. No need to subpoena that document. They already have it. That is enough trouble right there.

    BTW, it is interesting that the lead article in the Spring/Summer edition of the Air Force Retiree Newsletter, The Afterburner is:

    Retirees seeking employment with foreign government need approval

    Gee, I wonder what prompted that?

  8. john430 says:

    A retired Lt. General should be held in contempt of Congress. They should recall him to active duty and move to court-martial him. A man of his rank and knowledge playing footsie with foreign governments is a disgrace.

  9. Hal_10000 says:

    What this mostly proves is that Mike Flynn might be dumb, but he’s not “ignore your lawyer and talk to the feds what could possibly go wrong” dumb.

  10. Mikey says:

    Now it’s being reported Trump went to both the DNI and NSA director in an attempt to get them to publicly deny any collusion between his campaign and Russia. Both officials said no, believing the request “inappropriate.”

    From the article, a very interesting item:

    “The problem wasn’t so much asking them to issue statements, it was asking them to issue false statements about an ongoing investigation,” a former senior intelligence official said of the request to Coats.

    So, following FBI Director Comey’s testimony March 20, Trump wanted the NSA director and the DNI to lie to the American public in an effort to discredit the FBI.

  11. HarvardLaw92 says:

    @Mikey:

    This sh*tshow just keeps getting better by the minute.

    Thank G-d I ordered extra popcorn 🙂

  12. al-Alameda says:

    Conservatives generally see the Fifth Amendment as a guilt protection racket., but If I’m Mike Flynn I’d lawyer up and do exactly the same thing.

    I’m pretty sure that Fox News is characterizing Flynn’s move as some kind of profile in courage, a radical proclamation of obvious innocence, or some other oxygen depleting spin.

  13. CSK says:

    @HarvardLaw92:

    And a sinkhole just opened up in the street outside Mar-a-Lago. No kidding. You couldn’t ask for a better metaphor.

  14. Janis Gore says:

    https://twitter.com/Popehat/status/866790256112095232:

    Bannon [hangs up]: CIA says no, they can’t stop the investigation.

    Trump: Shit. Okay. Next is . . [checks list] the Chemical Safety Board.

  15. MarkedMan says:

    Trumpmis doing everything he can to signal to Flynn that he can expect a pardon

  16. dmhlt says:

    We can probably all think of someone who withstood 11 hours of Congressional grilling, and didn’t once invoke her Fifth Amendment rights.
    Then again, she didn’t need to … she wasn’t guilty of any crimes.

  17. gVOR08 says:

    @dmhlt: If only there had been someone strong like that running for president.

  18. pylon says:

    I’m just a mere Canadian lawyer, but normally in something like a Senate hearing you comply with a subpoena and wait for a question before deciding that the answer might tend to incriminate you, no? It’s not like an accused in a criminal case deciding not to take the stand.

  19. Daryl's other brother Darryl says:

    Today in the drip, drip. drip. drip…

    Brennan testified that “Russia’s goals were to undermine public faith in the electoral process,” to hurt Clinton, and to help Trump. He added, “It should be clear to everyone that Russia brazenly interfered in our 2016 election process.”

    We should all note that John4whatever, Jack, Guarneri, bill, and a bunch more trolls that hide under this bridge are A-OK with our country being attacked by Russia…because their team won…and still they call themselves patriots. Ha!!!

  20. Paul L. says:

    Invoking the Fifth is, indeed, not an admission of guilt.

    Does the same apply when Government Officials are testifying against a Defendant they arrested?

    Prosecutor: Ignore the arresting officers taking the 5th and the video, the defendant is guilt of resisting arrest.

  21. HarvardLaw92 says:

    @pylon:

    This is a subpoena duces tecum. He’s asserting that the production of the ordered documents would serve in a testimonial sense.