Flynn declines U.S. Senate subpoena in Russia probe

webfact · May 22, 2017

Flynn declines U.S. Senate subpoena in Russia probe

By Patricia Zengerle and Warren Strobel

REUTERS

FILE PHOTO - White House National Security Advisor Michael Flynn (C) arrives prior to a joint news conference between Canadian Prime Minister Justin Trudeau and U.S. President Donald Trump at the White House in Washington, U.S., February 13, 2017. REUTERS/Carlos Barria/File Photo

WASHINGTON (Reuters) - Former White House national security adviser Michael Flynn declined on Monday to comply with a subpoena from the Senate Intelligence Committee as it investigates possible Russian interference in the 2016 U.S. election.

Flynn invoked his Fifth Amendment protection against self-incrimination, according to a letter to the Senate committee from his attorney, which was obtained by Reuters.

The retired lieutenant general is a key witness in the Russia probe.

Flynn's attorneys did not respond to multiple requests for comment.

Senators Richard Burr and Mark Warner, the top Republican and Democrat on the panel, said in a statement they were disappointed by Flynn's decision, but would "vigorously pursue" his testimony.

The committee is conducting one of the main congressional probes into U.S. intelligence agency reports of Russian meddling in the election and whether there was any collusion between President Donald Trump’s campaign and Russia. Moscow has repeatedly denied the allegations and Trump denies any collusion between his campaign and Russian officials.

Flynn apparently misled Pentagon investigators about his foreign connections when he sought to renew his security clearance in early 2016, according to a document obtained by congressional Democrats and released in part on Monday.

Flynn, interviewed as part of the clearance renewal process, said that all of his foreign trips as a private citizen "were funded by U.S. companies," according to excerpts of a March 14, 2016 report compiled by security clearance investigators.

In fact, a trip Flynn made to Moscow in December 2015, where he attended a gala dinner and sat next to Russian President Vladimir Putin, was paid for by Russia Today, which U.S. officials consider a state-run propaganda arm, according to documents previously released by the House Oversight Committee.

The document is the latest to shed light on how Flynn received a security clearance and was subsequently hired as Trump's national security advisor. He was forced to resign from the job in February after less than a month for failing to disclose the content of his talks with Sergei Kislyak, Russia's ambassador to the United States, and then misleading Vice President Mike Pence about the conversations.

Excerpts were released by Rep. Elijah Cummings, ranking Democrat on the House committee.

Flynn's decision to decline to comply with the Senate Intelligence Committee subpoena was first reported by the Associated Press.

The Senate committee first requested documents from Flynn in an April 28 letter, but he declined to cooperate with the request. Then it issued a subpoena.

In response, his attorney wrote to the committee that "the context in which the Committee has called for General 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."

Flynn’s legal team said that he was rejecting the subpoena because the committee spurned his offer, made by the retired Army general in a May 8 letter, "to give a full account of the facts and to answer the committee’s questions, should the circumstances permit, including assurances against unfair prosecution. We stated that, absent such assurances, General Flynn would respectfully decline your request for an interview and for production of documents."

It was not clear what the committee would do if Flynn decided not to comply.

On Monday, Senator James Lankford, a Republican member of the intelligence panel, said on Twitter that Flynn was within his rights to invoke the Fifth Amendment of the U.S. Constitution.

“We will get to the truth one way or another,” Lankford said on Twitter. “We need facts, not speculation & anonymous sources.”

Congress has the constitutional authority to enforce a subpoena.

A Congressional Research Service report outlined three main options: seeking criminal prosecution through the executive branch, asking the courts for a civil judgement and using a dormant power of "inherent contempt" to detain and imprison an individual.

The latter option has not been used in 75 years, the report said, with Congress more often relying on the criminal contempt statute recently.

U.S. intelligence agencies concluded in January that Moscow tried to sway the November vote in Trump's favour. Russia has denied involvement, and Trump denies any collusion between his campaign and Russia.

Reuters reported on Thursday that Flynn and other advisers to Trump’s campaign were in contact with Russian officials and others with Kremlin ties in at least 18 calls and emails during the last seven months of the U.S. presidential race.

Two other former Trump associates - one-time campaign chairman Paul Manafort and Republican operative Roger Stone - have turned over documents the Senate panel had requested, while a third - campaign adviser Carter Page - had not yet complied, NBC News reported, citing a congressional source.

Flynn has acknowledged being a paid consultant to the Turkish government during the campaign.

(Reporting by Patricia Zengerler and Warren Strobel; Additional reporting by Jonathan Landay, Doina Chiacu and Tim Ahmann; Editing by Dan Grebler and Grant McCool)

darksidedog · May 23, 2017

I can see where this is heading. Flynn is going to want an immunity deal before he will dish up the story. It looks increasingly as though he has been involved in illegal activities, so now the Senate has to decide how badly it wants to find out what truly happened.

boomerangutang · May 23, 2017

The US justice system makes it too easy to 'invoke the 5th.' Rich and well-connected people like Flynn know all about how to do that. Trump invoked the 5th 99 times in one trial, several years ago. Poor and dark-skinned Americans don't know how to avoid justice that way.

mtls2005 · May 23, 2017

Not sure if he'll flip on Jared - this is why the President is keen to protect Flynn and mildly interfere with any criminal investigation - and the others.

Flynn has two goals: avoiding prison (either with immunity or a pardon) and not snitching.

CaptHaddock · May 23, 2017

The Fifth Amendment that forbids being compelled to testify against oneself does not apply in this case. Flynn has refused the Senate's subpoena for documents. Documentary evidence is not "testimony" although that is exactly what Flynn's lawyers are claiming. If that claim were sustained it means that those accused of a crime could refuse to be fingerprinted or to appear in a lineup.

Flynn should be held in contempt of Congress and prosecuted for that offense by the Dept. of Justice in addition to his many other crimes. But the Congress and the DOJ are Republican, so the outcome depends on the Republicans' commitment to the rule of law, which is doubtful.

worgeordie · May 23, 2017

"Monday to comply with a subpoena from the Senate Intelligence Committee " i thought you could not refuse a subpoena,and had to comply,invoking the 5th he has something serious to hide.

regards worgeordie

mtls2005 · May 23, 2017

Langsuan Man · May 23, 2017

1 hour ago, darksidedog said:

I can see where this is heading.

I can see it heading directly to a charge of lying to an FBI agent, under which the 5th Amendment against self incrimination does not apply. Don't talk to them at all and you are OK, but if you do talk to them they better not catch you in a lie

Quote

It's called Making False Statements and it is a federal crime; Section 1001 of Title 18. Martha Stewart, Bernie Madoff, and Scooter Libby are all individuals who have been convicted of this.

kamahele · May 23, 2017

He's following in his boss (Trump's) footsteps as Trump himself took the fifth almost 100 times in 1990. This despite Trump's exclamation last year that it makes people look like they are in mafia if they plead the fifth.

helpisgood · May 23, 2017

55 minutes ago, CaptHaddock said:

The Fifth Amendment that forbids being compelled to testify against oneself does not apply in this case. Flynn has refused the Senate's subpoena for documents. Documentary evidence is not "testimony" although that is exactly what Flynn's lawyers are claiming. If that claim were sustained it means that those accused of a crime could refuse to be fingerprinted or to appear in a lineup.

Flynn should be held in contempt of Congress and prosecuted for that offense by the Dept. of Justice in addition to his many other crimes. But the Congress and the DOJ are Republican, so the outcome depends on the Republicans' commitment to the rule of law, which is doubtful.

[Bold type added.]

I think you raise an interesting point. Maybe you know the details of this Flynn story better than I do. Any help will be appreciated.

I do know that there is a subpoena ad testificandum, which summons oral testimony from a witness, and a subpoena duces tecum, which summons physical evidence such as documents.

From what I now understand, Flynn's attorneys are relying upon the US Supreme Court case of US v. Hubbell (2000) for declining to produce any documents to Congress.

https://www.theatlantic.com/politics/archive/2017/05/michael-flynn-senate-subpoena/527232/

The Hubbell case held that they, as summarized by Wikipedia:

"...applied the so-called “act-of-production doctrine.” Under this doctrine, a person can invoke his Fifth Amendment rights against the production of documents only where the very act of producing the documents is incriminating in itself."

https://en.wikipedia.org/wiki/United_States_v._Hubbell

From the syllabus of the Hubbell opinion:

"...the act of producing subpoenaed documents may have a compelled testimonial aspect."

https://supreme.justia.com/cases/federal/us/530/27/case.html

Thus, has the Hubbell case been since overruled or how, if at all, is Congress distinguishing the Hubbell case from the facts regarding Flynn?

CaptHaddock · May 23, 2017

8 minutes ago, helpisgood said:

I think you raise an interesting point. Maybe you know the details of this Flynn story better than I do. Any help will be appreciated.

I do know that there is a subpoena ad testificandum, which summons oral testimony from a witness, and a subpoena duces tecum, which summons physical evidence such as documents.

From what I now understand, Flynn's attorneys are relying upon the US Supreme Court case of US v. Hubbell (2000) for declining to produce any documents to Congress.

https://www.theatlantic.com/politics/archive/2017/05/michael-flynn-senate-subpoena/527232/

The Hubbell case held that they, as summarized by Wikipedia:

"...applied the so-called “act-of-production doctrine.” Under this doctrine, a person can invoke his Fifth Amendment rights against the production of documents only where the very act of producing the documents is incriminating in itself."

https://en.wikipedia.org/wiki/United_States_v._Hubbell

From the syllabus of the Hubbell opinion:

"...the act of producing subpoenaed documents may have a compelled testimonial aspect."

https://supreme.justia.com/cases/federal/us/530/27/case.html

Thus, has the Hubbell case been since overruled or how, if at all, is Congress distinguishing the Hubbell case from the facts regarding Flynn?

This is the kind of legal ingenuity for which we pay lawyers. If the act of selecting documents necessarily compels Flynn to this alleged "testimonial activity" then he could resort to the IBM defense of its antitrust case in the 80's, i.e. simply send every document he owns right down to his electric bill for last month without engaging any selection process at all.

Flynn's lawyers know very well that citations for contempt of Congress are rare and prosecutions for it even less likely. So this is just a stonewall technique that is very likely to work against a Republican Congress and a Republican DOJ. My guess is that he will not be prosecuted for contempt of Congress, but he is going to jail nevertheless. Unless Trump pardons him on the legal theory that a "good man" can only do good.

helpisgood · May 23, 2017

3 minutes ago, CaptHaddock said:

This is the kind of legal ingenuity for which we pay lawyers. If the act of selecting documents necessarily compels Flynn to this alleged "testimonial activity" then he could resort to the IBM defense of its antitrust case in the 80's, i.e. simply send every document he owns right down to his electric bill for last month without engaging any selection process at all.

Flynn's lawyers know very well that citations for contempt of Congress are rare and prosecutions for it even less likely. So this is just a stonewall technique that is very likely to work against a Republican Congress and a Republican DOJ. My guess is that he will not be prosecuted for contempt of Congress, but he is going to jail nevertheless. Unless Trump pardons him on the legal theory that a "good man" can only do good.

Thanks! That's an interesting take.

YetAnother · May 23, 2017

3 hours ago, webfact said:

Congress has the constitutional authority to enforce a subpoena.

maybe so however we would just end up with flynn responding to every question:" i refuse to answer based on...."

boomerangutang · May 23, 2017

Some of the documents the various investigative committees seek are as follows. . . .

Filled-out and signed security forms required from anyone seeking to work close the prez. The Senate Intel Comm already asked to see such forms weeks ago, and (surprise) the crooks in the Oval Office wouldn't comply. As one senator remarked, "Not one syllable was turned over."

DC big players are quickly getting polarized into two groups: One, Democrats and decent bureaucrats who are trying to pursue leads - wherever they lead.

The other side are Republicans (with a couple of exceptions, like McCain), who are doing all they can to thwart investigations.

Expect Kelly Ann Conway (and her ilk) to come forth with yet another cavalcade of 'alternative facts' and outright lies to divert instigators.

CaptHaddock · May 23, 2017

1 hour ago, Langsuan Man said:

3 hours ago, darksidedog said:

I can see where this is heading.

can see it heading directly to a charge of lying to an FBI agent, under which the 5th Amendment against self incrimination does not apply. Don't talk to them at all and you are OK, but if you do talk to them they better not catch you in a lie

Depends on the circumstances under which he lied to the FBI. If it occured during the vetting conducted by the FBI for his appointment as NSA, then he would not have been able to decline to answer if he wanted to get the job.

Traveler19491 · May 23, 2017

59 minutes ago, helpisgood said:

I think you raise an interesting point. Maybe you know the details of this Flynn story better than I do. Any help will be appreciated.

I do know that there is a subpoena ad testificandum, which summons oral testimony from a witness, and a subpoena duces tecum, which summons physical evidence such as documents.

From what I now understand, Flynn's attorneys are relying upon the US Supreme Court case of US v. Hubbell (2000) for declining to produce any documents to Congress.

https://www.theatlantic.com/politics/archive/2017/05/michael-flynn-senate-subpoena/527232/

The Hubbell case held that they, as summarized by Wikipedia:

"...applied the so-called “act-of-production doctrine.” Under this doctrine, a person can invoke his Fifth Amendment rights against the production of documents only where the very act of producing the documents is incriminating in itself."

https://en.wikipedia.org/wiki/United_States_v._Hubbell

From the syllabus of the Hubbell opinion:

"...the act of producing subpoenaed documents may have a compelled testimonial aspect."

https://supreme.justia.com/cases/federal/us/530/27/case.html

Thus, has the Hubbell case been since overruled or how, if at all, is Congress distinguishing the Hubbell case from the facts regarding Flynn?

Fascinating point. I assume that what is meant by "...the act of producing subpoenaed documents may have a compelled testimonial aspect" would refer to the defendant's having had possession of the documents being incriminating and not the documents themselves (although the documents may well have held incriminating evidence), therefore producing them would be incriminating. If that is the case, then your argument that Flynn's refusal to produce is not supportable by the Fifth. Hopefully, the Senate will pursue this. Thanks for sharing.

ilostmypassword · May 23, 2017

50 minutes ago, CaptHaddock said:

This is the kind of legal ingenuity for which we pay lawyers. If the act of selecting documents necessarily compels Flynn to this alleged "testimonial activity" then he could resort to the IBM defense of its antitrust case in the 80's, i.e. simply send every document he owns right down to his electric bill for last month without engaging any selection process at all.

Flynn's lawyers know very well that citations for contempt of Congress are rare and prosecutions for it even less likely. So this is just a stonewall technique that is very likely to work against a Republican Congress and a Republican DOJ. My guess is that he will not be prosecuted for contempt of Congress, but he is going to jail nevertheless. Unless Trump pardons him on the legal theory that a "good man" can only do good.

Do you think that Flynn and IBM are comparable in respect to how many documents each can produce? It's dubious Flynn has enough to seriously daunt the Justice Dept.

ilostmypassword · May 23, 2017

I don't know anything apart from what i've just learned here about the 5th amendment in respect to producing documents. But I do know that Flynn has every right to invoke the 5th Amendment. It's one of the most brilliant pieces of the Constitution and was revolutionary at the time it was created.

CaptHaddock · May 23, 2017

Trump's attitude toward Flynn subsequent to the firing is interesting. In addition to his attempt to obstruct justice by asking Comey to kill the investigation of Flynn and then firing Comey when he refused, Trump has repeatedly made positive remarks about Flynn including saying that firing him was a mistake. We know that Trump is not loyal to his minions once they have stopped being useful, so it is presumably not loyalty that is driving him. It could be fear. If Flynn sings in exchange for immunity, his song is likely to be about Trump. At least Trump's belated support encourages us to think so.

CaptHaddock · May 23, 2017

5 minutes ago, ilostmypassword said:

Do you think that Flynn and IBM are comparable in respect to how many documents each can produce? It's dubious Flynn has enough to seriously daunt the Justice Dept.

Not at all. But, as I read it, the "testimonial activity" that Flynn's lawyers claim would necessarily be entailed in providing the documents and which could be self-incriminating, arises from his having to select the documents to satisfy the subpoena. If that claim were to be upheld, he could avoid incriminating selecting by not selecting at all.

IBM's case did not involve the Fifth Amendment. They merely overloaded the DOJ by responding to their subpoena with semi trucks full of documents.

ilostmypassword · May 23, 2017

Just now, CaptHaddock said:

Not at all. But, as I read it, the "testimonial activity" that Flynn's lawyers claim would necessarily be entailed in providing the documents and which could be self-incriminating, arises from his having to select the documents to satisfy the subpoena. If that claim were to be upheld, he could avoid incriminating selecting by not selecting at all.

IBM's case did not involve the Fifth Amendment. They merely overloaded the DOJ by responding to their subpoena with semi trucks full of documents.

My comment was directed at the volume of documents he could produce. It's dubious that he's anywhere nearly in the same league as one of the world's largest corporations.

mtls2005 · May 23, 2017

We know that Trump is not loyal to his minions once they have stopped being useful, so it is presumably not loyalty that is driving him.

I think it is loyalty driving his actions, but not loyalty to Flynn per se.

I think Trump realizes the exposure Flynn represents, not so much for the President himself, but for a family member. Hence he will do anything (remain loyal) to protect his son-in-law.

Protecting Flynn is just part of that behavior. If there wasn't this familial aspect, Flynn would have been run over by the Entertainment Tonight bus (or Pussy Wagon) many, many times by now.

Edited May 23, 2017 by mtls2005

soalbundy · May 23, 2017

I have nothing to hide so i am invoking the 5th amendment.

iReason · May 23, 2017

The house of cards begins to fall.

And Flynn the worm, doesn't even have the guts to tell his story.

Or provide documents to back it up.

America will be great again once this entire putrid infestation is eradicated from the White House.

boomerangutang · May 23, 2017

31 minutes ago, ilostmypassword said:

I don't know anything apart from what i've just learned here about the 5th amendment in respect to producing documents. But I do know that Flynn has every right to invoke the 5th Amendment. It's one of the most brilliant pieces of the Constitution and was revolutionary at the time it was created.

Flynn has an over-inflated sense of self-importance. Trump will go down in flames for various reasons, with or without Flynn's input or lack thereof.

As for the 5th: it doesn't apply to documents. Plus, most of those documents are government property, not Flynn's personal property. As such, they (or copies) exist outside of Flynn's filing cabinets. The WH has already refused to comply with subpoenas for documents, and will continue to do so - furthering the big hole they're digging for themselves.

Trump is astoundingly ignorant of how things happen inside the 495 beltway. He proves what a dufus he is, every day. Tweet away, dumbo. It's great entertainment. And the longer Trump and his buddies twist in the wind, the longer Republicans in general will be exposed as the harmful-to-America corporate lapdogs they are.

iReason · May 23, 2017

"If you're innocent, why are ya taking the 5th amendment?"

May 23, 2017

So the White House National Security Advisor Michael Flynn, general of the US army is using 5th on meddling with the russians.

Let it sink how rotten that really is.

Thakkar · May 23, 2017

1 hour ago, CaptHaddock said:

Trump's attitude toward Flynn subsequent to the firing is interesting. In addition to his attempt to obstruct justice by asking Comey to kill the investigation of Flynn and then firing Comey when he refused, Trump has repeatedly made positive remarks about Flynn including saying that firing him was a mistake. We know that Trump is not loyal to his minions once they have stopped being useful, so it is presumably not loyalty that is driving him. It could be fear. If Flynn sings in exchange for immunity, his song is likely to be about Trump. At least Trump's belated support encourages us to think so.

It's emerged he may have done even more than obstruct the FBI. He asked intelligence chiefs from NSA and CIA to publicly contradict Comey in an attempt to muddy the waters.

http://www.washingtonpost.com/world/national-security/trump-asked-intelligence-chiefs-to-push-back-against-fbi-collusion-probe-after-comey-revealed-its-existence/2017/05/22/394933bc-3f10-11e7-9869-bac8b446820a_story.html

mtls2005 · May 23, 2017

At this point a list of anyone whom Trump didn't ask to sideline the investigations might be shorter?

Edited May 23, 2017 by mtls2005

boomerangutang · May 23, 2017

Nothing will phase these guys. Trump fans will stick by him no matter what.

Even if Trump and Flynn were caught in bed with Putin's wife and Vlad all sucking each other, with a few bloodied kids lying around the room, they'd say 'there's no there there.'

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