Michael Flynn: Why Pleading the Fifth Amendment Might Not Save Him and Others in the Trump-Russia Investigation

Former national security adviser Michael Flynn’s attempt to claim his Fifth Amendment rights to avoid giving documents to the Senate committee probing Russian influence in the 2016 election may not hold up, legal experts tell Newsweek.

Simply claiming the Fifth doesn’t allow a person to avoid turning over incriminating documents. Federal investigators regularly subpoena and receive incriminating documents they then use to convict suspects.

“The Fifth Amendment doesn’t usually give you the right to refuse to produce documents that have already been created,” says law professor James Duane of Regent University. “White collar prosecutions are routinely built on subpoenaed documents, like in the case of Martha Stewart or Bernie Madoff.”

Related: Is Michael Flynn a security risk?

05_22_flynn_03 Flynn speaks at a U.S. Institute of Peace conference on January 10. Reuters

Duane added that while the Fifth Amendment protects people from being forced to incriminate themselves by testifying, it doesn’t apply to, “Objects like guns or bloody shirts or documents.”

Another problem for Flynn: The Fifth only protects information that incriminates the person claiming it. It offers no protection against turning over information that might incriminate other people who are under investigation.

An example, says Jeffrey Welty of the University of North Carolina, would be an accountant who keeps the books for a company being probed for illegally selling technology to a foreign company. If federal investigators subpoena the accountant’s records, the bookkeeper would not be able to claim the Fifth because the records don’t incriminate him or her—they incriminate the company for which the company was working.

While the Fifth Amendment doesn’t usually provide protection from a subpoena seeking documents, there is a specific set of circumstances in which it would, legal experts say. If the mere act of turning over a document would be incriminating—if it revealed a person’s possession of a document that was illegal to possess or revealed their knowledge of a conspiracy—then invoking the Fifth Amendment could legitimately block a subpoena seeking such documents. “The government can’t make its case through the fact that you’re handing over the documents,” says law professor Orin Kerr of George Washington University.

Take the example of the company under investigation for illegally selling technology to a foreign company. Were federal investigators to subpoena the records showing the illegal sales directly from a company executive who was under investigation, that executive could successfully claim the Fifth by arguing that their possession of the books was incriminating to them, Welty says.

If a similar outcome occurs in the Flynn case, Congress has options. The lawmakers could pass a resolution saying the retired general is in contempt and recommend that the Department of Justice prosecute Flynn in federal court to get a ruling on whether he should be compelled to produce the documents, according to Duane, who also wrote the 2016 book You Have the Right To Remain Innocent, which focuses on the right to avoid self-incrimination. (It’s unclear how this might unfold because in similar cases in the past, the DOJ has been reluctant to step in.)

Senate Intelligence leaders said Monday afternoon they were disappointed Flynn chose to disregard their request for documents  and said they would “vigorously pursue” his testimony and the documents.

Also on Monday afternoon, the House Oversight Committee released a letter claiming Flynn lied to Pentagon investigators during his security clearance interviews last year about his income and about his 2015 dinner with Russian President Vladimir Putin. Flynn’s apparent misleading of the Pentagon could get him in more legal trouble, as lying to federal investigators is a felony punishable by up to five years in prison, The New York Times reported.

A similar high-profile case in which a person tried to claim the Fifth rather than reveal information to the Senate Intelligence Committee came in 1986 when National Security Council staffer Lieutenant Colonel Oliver North invoked his right in order to avoid testifying about the Iran-Contra scandal.

Congress then granted immunity to North in order to force him to testify about the affair, and while federal prosecutors won convictions against him on charges including obstruction, an appeals court overturned the convictions on the grounds that the immunity granted him by Congress tainted the evidence used to convict him.

Noting the parallels between Flynn and North, Duane said that North’s invocation of the Fifth was the crucial factor that led the appeals court to overturn his conviction: “That’s why Oliver North is not a convicted felon right now.”

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