Flynn Refusal to Testify Could Set Stage for Political Battle in Senate

Invoking his Fifth Amendment right against self-incrimination, former National Security Advisor Michael Flynn refused on Monday a Senate Intelligence Committee subpoena for documents related to its investigation of Russian meddling in the 2016.

The move to push back on investigators’ demand for information came as Flynn’s legal woes appeared to worsen. Hours after news broke that Flynn would plead the fifth, the top Democrat on the House Oversight Committee accused him of lying on a 2016 application to renew his top secret security clearance.

Meanwhile, the decision to claim his Fifth Amendment rights sets the stage for a possible clash between Senate investigators and Flynn. Congress has broad powers to enforce a subpoena, and could hold Flynn in contempt for refusing to provide requested documents, opening him up to potential jail time.

As laid out in an exhaustive and prescient Congressional Research Service report on the power of Congress to enforce its subpoenas, the legislative body has a variety of tools available to compel the production of testimony and documents.

Most importantly, the Senate Intelligence Committee could vote to hold Flynn in contempt under criminal law, which would then likely require a vote by the full Senate to recommend that Flynn be prosecuted. His case would then be forwarded to the U.S. attorney for the District of Columbia for prosecution.

In a letter to the committee on Monday, Flynn’s legal team said the demand that Flynn produce documents detailing his contacts with Russians amounted to the equivalent of testimony and that their client was within his rights to refuse the requests. Flynn’s lawyers added that their client is “the target on nearly a daily basis of outrageous allegations” that “feed the escalating public frenzy against him.”

“We will vigorously pursue General Flynn’s testimony and his production of any and all pertinent materials pursuant to the Committee’s authorities,” Sens. Richard Burr (R-N.C.) and Mark Warner (D-Va.), the chairman and ranking member, respectively, of the Senate Intelligence Committee, said in a joint statement.

Spokespersons for the Senate Intelligence Committee did not answer questions about whether it would move to hold Flynn in contempt. The committee first requested the documents in April, and issued the subpoena earlier this month after Flynn declined to cooperate.

By refusing to comply with the Senate subpoena, Flynn has effectively made the question of his prosecution for contempt a political issue. The Senate Intelligence Committee would first have to vote to hold Flynn in contempt, and then the GOP-controlled Senate would vote on whether to refer Flynn’s case to a prosecutor.

How such an issue would play out in the Senate remains an open question.

Flynn is currently facing a bevy of legal headaches. FBI investigators are examining ties between Flynn and foreign governments, including his failure to register as an agent of a foreign power while serving as a senior advisor to Trump. That federal investigation has reportedly gained momentum in recent weeks, with subpoenas targeting Flynn’s business associates. Last week, former FBI Director Robert Mueller was appointed to oversee that investigation.

If FBI agents haven’t already investigated the issue, Monday’s claim by Rep. Elijah Cummings (D-Md.) provides additional fodder for federal investigators. According to Cummings, the House Oversight Committee has in its possession Pentagon reports documenting statements made by Flynn in the course of his application for a security clearance renewal and in which he appears to mislead investigators.

According to a Report of Investigation dated March 14, 2016, Flynn told investigators that his 2015 trip to address a conference hosted by RT, the Kremlin-backed propaganda outlet, was paid for by “U.S. companies.” RT paid Flynn more than $45,000 through his speakers bureau, according to earlier documents released by the House Oversight Committee.

On that trip, Flynn was seated next to Russian President Vladimir Putin at a dinner gala. When asked in 2016 whether he had had any contacts with foreign governments, Flynn told investigators that such contact had only been “insubstantial.”

The decision not to comply with the Senate subpoena may represent a ploy by Flynn’s legal team to force the committee to consider an offer of immunity in exchange for testimony. In March, Flynn’s legal team told congressional and FBI investigators that he would be willing to testify in exchange for immunity from prosecution, an offer that was promptly rejected.

The production of documents typically receives fewer Fifth Amendment protections than oral testimony, and Congress has in the past held executive branch officials in contempt for invoking their constitutional right not to provide self-incriminating testimony. In 2014, Congress voted to hold IRS official Lois Lerner in contempt after she pleaded the fifth in testimony before a Hill committee investigating whether the agency had unfairly targeted conservative groups.

Congressional Republicans’ attempt to force Lerner’s testimony eventually fell apart. House GOP leaders argued that Lerner had lost her right to invoke the fifth when she delivered an opening statement before the House Oversight and Government Reform Committee in which she said she had done nothing wrong.

The following year, prosecutors concluded that she had not waived her rights, and no charges were filed against Lerner.

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