Former National Security Adviser Michael Flynn’s decision to invoke the Fifth Amendment might protect him against self-incrimination – but it could also escalate a clash involving immunity, contempt and some tough choices for Senate Republicans.
Flynn formally invoked the Fifth Amendment on Monday, thwarting Senate Intelligence Committee members for now but underscoring how an investigation into Russian election-related activities has expanded into possible criminal terrain.
In a six-page letter, Flynn’s attorneys said the retired Army lieutenant general would not turn over documents for which the Intelligence panel had issued a subpoena nearly two weeks ago.
“The context in which the committee has called for Gen. Flynn’s testimonial production of documents makes clear that he has more than a reasonable apprehension that any testimony he provides could be used against him,” Robert K. Kelner and two other attorneys with Covington & Burling wrote in the letter, which was first obtained by The Associated Press.
While the attorneys had previously telegraphed Flynn’s intentions, the letter delivered Monday officially set in motion a drama that’s rooted in history but could lead to several potential climaxes.
Even the phrase – “taking the Fifth” – evokes some powerful associations, as Flynn’s former boss, Donald Trump, noted in a speech last Sept. 28 in Iowa. At the time, the Republican presidential candidate was fanning flames over Democratic candidate Hillary Clinton’s aides and her email accounts.
“You see the mob taking the Fifth,” Trump said. “If you’re innocent, why do you take the Fifth Amendment?”
Unlike in the court of public opinion, where Trump was making his heated campaign appeal, lawmakers, lawyers and judges recognize that the Fifth Amendment is not supposed to carry with it a hint of having something suspicious to hide.
Democratic Sen. Dianne Feinstein of California, a senior member of the Senate Intelligence and Judiciary committees, called reports of Flynn’s actions “unfortunate but not unexpected.”
“I believe both the Intelligence and Judiciary committees should continue to seek other ways to gain access to this information,” Feinstein said. “The investigation will go on.”
The Intelligence Committee’s two leaders, Republican Sen. Richard Burr of North Carolina and Democratic Sen. Mark Warner of Virginia, said in a joint statement that “while we recognize Gen. Flynn’s constitutional right to invoke the Fifth Amendment, we are disappointed he has chosen to disregard the committee’s subpoena request for documents relevant and necessary to our investigation.”
The Senate Intelligence panel, one of several congressional committees investigating Russian interference in the 2016 U.S. presidential elections, first requested documents from Flynn in an April 28 letter. After he refused to turn over the documents, the committee issued its subpoena May 10.
According to the letter from Flynn’s attorneys, the subpoena demanded “all communication records with any Russian official” and “a list of all meetings with any Russian official,” among other documents. The attorneys argue that complying with the subpoena would amount to a “testimonial act.”
In these circumstances, Gen. Flynn is entitled to, and does, invoke his Fifth Amendment privilege against production of documents.
Attorneys for former National Security Adviser Michael Flynn
Now that Flynn has formally invoked the Fifth, congressional investigators have several options.
The full Senate, or the 15-member panel formally known as the Senate Select Committee on Intelligence, could seek a judge’s order compelling Flynn to comply. Last year, for instance, the Senate approved by 96-0 a resolution authorizing legal action to enforce a subpoena issued by the Senate Permanent Subcommittee on Investigations, which was probing alleged sex trafficking at the Backpage.com website.
“This case marks the first time in more than 20 years that the Senate has enforced a subpoena in court,” said the committee’s leaders, Republican Sen. Rob Portman of Ohio and Democratic Sen. Claire McCaskill of Missouri.
In order to overcome the Fifth, a court order would also include a grant of immunity against the use of Flynn’s testimony in a subsequent criminal investigation.
Despite immunity, prosecutors could use other evidence against Flynn, if they had it, but they would have to be careful. The convictions of two men convicted in the Iran-Contra scandals of the 1980s, Oliver North and John Poindexter, were thrown out by an appeals court because of fears that they had been tainted by testimony before a special congressional committee.
The application for the judicial immunity order would have to be approved by a majority of the Senate or by a two-thirds vote of the full Intelligence Committee, the nonpartisan Congressional Research Service noted in a May 12 report.
Another alternative might be for the senators to refer Flynn’s refusal to the Justice Department for possible prosecution on charges of criminal contempt. The Trump administration’s lawyers, however, may not be receptive.
“Efforts to punish an executive branch official for noncompliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most, circumstances,” Congressional Research Service legislative attorney Todd Garvey observed.
During the Obama administration, for instance, the Justice Department declined on several occasions to pursue contempt proceedings authorized by the Republican-controlled Congress against former Attorney General Eric Holder and former IRS official Lois Lerner.
But in a possible object lesson for Flynn, showing that vulnerable targets can’t always rely on strict party loyalty, 21 Democrats joined all House Republicans on June 28, 2012, in approving the subpoena enforcement action against Holder.