Former national security adviser Lt. Gen. Michael Flynn, through his lawyers, today invoked the Fifth Amendment right against self-incrimination and refused to hand over documents subpoenaed by a Senate committee.
The Senate Intelligence Committee subpoenaed Flynn's personal documents on May 10, after he declined to cooperate with its April 28 request in relation to the panel's investigation into Russian interference in the 2016 election and possible ties to Trump campaign associates. Before the April request, Flynn said through a statement from his lawyer that he wouldn't submit himself to questioning from the committee "without assurances against unfair prosecution."
The Fifth Amendment gives criminal defendants the right to refuse to testify at trial. No person shall be compelled in any criminal case to be a witness against himself, according to the U.S. Constitution.
Although a congressional investigation is not a criminal matter, Flynn would still have the right to invoke the Fifth Amendment with regard to certain questions that could potentially incriminate him in a future criminal case. But he does not have the right to refuse to testify before Congress altogether.
As a general matter, the Fifth Amendment applies only to testimony and does not give criminal defendants or witnesses in congressional investigations the right to refuse to turn over subpoenaed documents. But there is an exception when the act of producing a document is itself incriminating.
The fact that the content of the documents are incriminating does not give you a Fifth Amendment right not to produce them, explained Michael Seidman, a criminal law professor at the Georgetown University Law Center. But the mere act of producing them can be incriminating if the government doesnt know that they exist or that you have them.
If the government already knows that certain documents exist, it could turn into a complicated legal question about whether Flynn must release them, said Seidman.
In a letter to Sens. Richard Burr, R-North Carolina, and Mark Warner, D-Virginia, and the Senates Select Committee on Intelligence dated May 22 obtained by ABC News, Flynns lawyers argued that [p]roducing documents that fall within the subpoenas broad scope would be a testimonial act, insofar as it would confirm or deny the existence of such documents.
The context in which the Committee has called for General Flynns testimonial production of documents makes clear that he has more than a reasonable apprehension that any testimony he provides could be used against him, the letter reads.
Seidman said this is a standard legal strategy and that any competent lawyer would tell Flynn that if he might have a Fifth Amendment privilege he should assert it. Also, if he produces documents and makes statements, he risks inadvertently waiving his rights against self-incrimination as the Russia investigation progresses, Seidman said.
Legal experts also pointed out that if Flynn is granted immunity from criminal prosecution, then he would no longer have Fifth Amendment rights against self-incrimination and could be compelled to answer all questions and release all documents.
In the same way that immunizing a low- or mid-level person in a crime ring can lead to fingers pointed all the way up to the Don, said Akhil Amar, a constitutional law professor at Yale Law School, who said the Don pun was intentional.
Members of the Senate Intelligence Committee said today that they would use all available tools to get information from Flynn, including holding him in contempt of Congress, which could open him up to criminal charges.
We're going to keep all the options on the table, Warner told ABC News.
We're going to help honor the constitutional rights but we still have to be able to get to the facts. We can't just step back and say, Oh, OK we can't get it, added Sen. James Lankford, R-Oklahoma, another member of the Senate Intelligence Committee.
Lankford also suggested that the committee will still try to negotiate with Flynns lawyers to get access to the information he is currently refusing to share.
Warner added that there might be a legal gray area that prohibits Flynn from using the Fifth Amendment to protect his refusal to provide documents, versus his clear constitutional right against testimony that might incriminate him.
We know there's a Fifth Amendment right on testimony but I think there's an open question on documents and we're looking into that right now, he said.
ABC News' Ali Rogin and Mary Bruce contributed to this report.
Here is the original post:
What you need to know about the 5th Amendment and ... - ABC News
- New Ad Taunts Trump: 'Take the Stand, Donald, or Admit You're a Coward' - The New York Times - May 19th, 2024 [May 19th, 2024]
- Fifth Amendment prohibits double jeopardy and here's what that means - Tennessean - May 19th, 2024 [May 19th, 2024]
- VANDA Pharmaceuticals States a Fifth Amendment Claim against the Government for Taking a Trade Secret - Trade Secrets Trends - February 13th, 2024 [February 13th, 2024]
- Attorneys argue shooters Fifth Amendment rights on the 4th day of the Jennifer Crumbley trial - Detroit News - January 27th, 2024 [January 27th, 2024]
- Judge will not allow Michigan school shooter to testify in mother's trial if he invokes the Fifth Amendment - AppleValleyNewsNow.com - January 27th, 2024 [January 27th, 2024]
- Shamoon v. Resideo: Obviousness affirmed - Patently-O - August 12th, 2023 [August 12th, 2023]
- Billings County sued over eminent domain as bridge dispute rekindles - Bismarck Tribune - August 12th, 2023 [August 12th, 2023]
- 'Tyler' and a Call for Reform of the New Jersey Tax Foreclosure ... - Law.com - August 12th, 2023 [August 12th, 2023]
- "Like fatter Tony Soprano Attending the Arraignment and "Effect[ing ... - Emptywheel - August 12th, 2023 [August 12th, 2023]
- Call to faith-based leaders to help end violence; Parents need to pay ... - Capital Gazette - August 12th, 2023 [August 12th, 2023]
- "Stunning development": Experts say Trump target letter is surest ... - Salon - June 12th, 2023 [June 12th, 2023]
- LIV, PGA drop a bombshell on Washington - POLITICO - June 12th, 2023 [June 12th, 2023]
- Congressman Matt Gaetz Introduces Resolution to Hold Former ... - Congressman Matt Gaetz - June 12th, 2023 [June 12th, 2023]
- It's time to end home equity theft in Maine - Bangor Daily News - June 12th, 2023 [June 12th, 2023]
- Louisiana's Sabine River Authority Not Entitled To Sovereign Immunity - The Energy Law Blog - May 28th, 2023 [May 28th, 2023]
- Ninth Circuit Finds that Criminal Reentry Provision Not Driven by ... - Immigration Blog - May 28th, 2023 [May 28th, 2023]
- Ken Paxton Impeached on 20 Charges Including Bribery ... - The Texan - May 28th, 2023 [May 28th, 2023]
- Simply losing it: Bitter fight brews over federal judges forced retirement effort - Yahoo News - May 28th, 2023 [May 28th, 2023]
- Worth County Board of Supervisors Meeting (LIVE) - KIOW.com - May 28th, 2023 [May 28th, 2023]
- Trump Organization finishes last in brand reputation survey for second straight year - The Hill - May 28th, 2023 [May 28th, 2023]
- They held down a Black teen who tried to shoplift. He died from ... - Wisconsin Examiner - May 28th, 2023 [May 28th, 2023]
- What is the Fifth Amendment, and how has it been used? : NPR - March 31st, 2023 [March 31st, 2023]
- Tmc the Metals Company Inc. Enters into Fifth Amendment to Pilot Mining Test Agreement and Third Amendment to Strategic Alliance Agreement, Which Is... - February 20th, 2023 [February 20th, 2023]
- Interpretation: The Fifth Amendment Due Process Clause | Constitution ... - January 31st, 2023 [January 31st, 2023]
- Fifth Amendment invoked to the point of 'unintentional hilarity' by Jan ... - December 26th, 2022 [December 26th, 2022]
- Why Did Trump Plead The Fifth Amendment?What We Do Know ... - Newsweek - October 25th, 2022 [October 25th, 2022]
- Understanding the Fifth Amendment Right to Remain Silent - October 19th, 2022 [October 19th, 2022]
- US Government for Kids: Fifth Amendment - Ducksters - October 19th, 2022 [October 19th, 2022]
- Donald Trump loves to plead the Fifth. It won't save him this time. - MSNBC - October 19th, 2022 [October 19th, 2022]
- Everything You Ever Wanted to Know About Georgia Special Purpose Grand Juries But Were Afraid to Ask - Lawfare - October 19th, 2022 [October 19th, 2022]
- Citing double jeopardy, Fargo man who killed 14-year-old Jupiter Paulsen wants murder conviction dropped - INFORUM - October 19th, 2022 [October 19th, 2022]
- Nicki Clyne: What Happened to NXIVM Member and Where Is She Now? - Newsweek - October 19th, 2022 [October 19th, 2022]
- New York AG Asks Judge to Prevent Trumps From Hiding Assets Mother Jones - Mother Jones - October 15th, 2022 [October 15th, 2022]
- Trump Will Finally Have to Face Questions About Alleged Rape, Judge Rules - VICE - October 15th, 2022 [October 15th, 2022]
- 'In the Heat of the Night' star Lee Grant on working with Sidney Poitier and being blacklisted by Hollywood - Yahoo Entertainment - October 15th, 2022 [October 15th, 2022]
- THE OTHER SIDE: Orange Jesus took the Fifth - theberkshireedge.com - October 6th, 2022 [October 6th, 2022]
- BNP Paribas : 5th amendment to the 2021 Universal Registration Document - Marketscreener.com - September 29th, 2022 [September 29th, 2022]
- Tlingit tribal member shares his story of helping the Yakamas get Mount Adams back - Yakima Herald-Republic - September 29th, 2022 [September 29th, 2022]
- Trump Pleading the Fifth Might Have Doomed Him in Civil Case - Newsweek - September 27th, 2022 [September 27th, 2022]
- Why is Kevin McCarthy Promising to Remove Parents from the Terrorist Watch List? - Daily Kos - September 27th, 2022 [September 27th, 2022]
- Alex Jones said he may have to plead the Fifth as he's set to testify - Insider - September 27th, 2022 [September 27th, 2022]
- USS Fitzgerald and ACX Crystal collision: The Fifth Circuit Court of Appeals delineates the reach of personal jurisdiction - GARD - September 9th, 2022 [September 9th, 2022]
- Trump investigation tracker: Keeping up with Trump's many legal issues - Grid - September 9th, 2022 [September 9th, 2022]
- Bo Dukes's conviction to stand following motion for new trial - Douglas Now - September 9th, 2022 [September 9th, 2022]
- VAIL RESORTS INC : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet... - September 9th, 2022 [September 9th, 2022]
- It's brother vs. brother at trial over NYC slaying of mobbed-up dad, 'Sally Daz' Zottola - New York Post - September 9th, 2022 [September 9th, 2022]
- Letters: Boater offers different perspective on the Playpen - Chicago Tribune - September 9th, 2022 [September 9th, 2022]
- Michael Flynn: From Government Insider to Holy Warrior - PBS - September 9th, 2022 [September 9th, 2022]
- Hamel found guilty of Athol murder, sentenced to life in prison - The Recorder - September 9th, 2022 [September 9th, 2022]
- Biden Slowly Winning LBJ- and FDR-Like Praise As Legislative Victories Mount - Seattle Medium - September 9th, 2022 [September 9th, 2022]
- Vice Principals, the Fifth Amendment, and Negative Inferences - JD Supra - August 30th, 2022 [August 30th, 2022]
- PERMA FIX ENVIRONMENTAL SERVICES INC : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an... - August 30th, 2022 [August 30th, 2022]
- Letter: Invoking the Fifth Amendment is not an admission of guilt - INFORUM - August 29th, 2022 [August 29th, 2022]
- Taking the Fifth, FBI attacked: 5 takeaways of Gov. Whitmer kidnap trial - MLive.com - August 29th, 2022 [August 29th, 2022]
- How much money could Donald Trump have to pay in fines if his businesses are penalized? - AS USA - August 29th, 2022 [August 29th, 2022]
- A high stake debate and tension at the GOP convention: Your guide to Michigan politics - MLive.com - August 29th, 2022 [August 29th, 2022]
- We Can Be Framers Too - The Atlantic - August 29th, 2022 [August 29th, 2022]
- For 38 Years of American History, There Has Been No Vice President - History News Network - August 8th, 2022 [August 8th, 2022]
- Emmett Till is gone. The quest for justice lives on. - New York Daily News - August 8th, 2022 [August 8th, 2022]
- 'A bold-faced LIE': St. Louis mayor blasts Black police officer groups criticism of oversight bill - KSDK.com - August 8th, 2022 [August 8th, 2022]
- He has done more to further the cause of hate in the US than almost anyone: the rise and fall of Alex Jones - The Guardian - August 8th, 2022 [August 8th, 2022]
- Even the District Attorney Believed Joaquin Ciria Was Innocent. Why Did It Take So Long to Set Him Free? - POLITICO - August 8th, 2022 [August 8th, 2022]
- Understanding the Constitution: Why It Doesn't Protect the Unborn - The Epoch Times - August 6th, 2022 [August 6th, 2022]
- Former fugitive charged with rape in Deerfield case demands new lawyer - The Recorder - August 6th, 2022 [August 6th, 2022]
- Sources: Donald Trump Jr., Ivanka Testify Before NY AG's Office in Finance Probe, Neither Pleads the 5th - NBC New York - August 6th, 2022 [August 6th, 2022]
- Time running out to try Catherine Hoggle for the disappearance, suspected murder of her 2 kids - WUSA9.com - August 6th, 2022 [August 6th, 2022]
- Trump faces uphill fight on executive privilege in DOJ probe - POLITICO - August 6th, 2022 [August 6th, 2022]
- Charles Milliken: Defining what exactly is a 'right' - Monroe Evening News - July 31st, 2022 [July 31st, 2022]
- How grand juries work and why Jan. 6 prosecutors are relying on them - Salon - July 31st, 2022 [July 31st, 2022]
- Roe, Dobbs and women's rights New York Daily News - New York Daily News - July 31st, 2022 [July 31st, 2022]
- Partisan congressional hearings are a threat to all citizens - Monroe Evening News - July 31st, 2022 [July 31st, 2022]
- 9 years after a UIW police officer shot student Cameron Redus, the case is going to trial - San Antonio Express-News - July 31st, 2022 [July 31st, 2022]
- Outcome of first kidnapping trial can't be used as evidence in second trial, judge rules - Michigan Radio - July 31st, 2022 [July 31st, 2022]
- Washington County woman held in death of 5-year-old son - Herald-Mail Media - July 31st, 2022 [July 31st, 2022]
- What Did the Dissenting Justices Think About the Power of Military Authorities & More - The Soldiers Project - July 31st, 2022 [July 31st, 2022]
- Whipping the votes in Suffolk - Newsday - July 31st, 2022 [July 31st, 2022]
- If Trump Takes the Fifth, Is He Guilty? - Law & Crime - July 29th, 2022 [July 29th, 2022]
- Anambra House of Assembly Passes 5th Amendment Bills - TVC News - July 29th, 2022 [July 29th, 2022]
- How do grand juries work? Their major role in criminal justice, and why prosecutors are using them to investigate efforts to overturn the 2020... - July 29th, 2022 [July 29th, 2022]
- We need to hear the unbiased story - Villages-News - July 29th, 2022 [July 29th, 2022]