Michael Flynn and Donald Trump Think Michael Flynn Is Guilty
Emily Zanotti outlines how former Lt. Gen. Michael Flynn won’t respond to a subpoena from the Senate Intelligence Committee, instead invoking the Fifth Amendment’s right against self-incrimination. Sources confirmed to the NBC News that Flynn will make his demand official in a letter to the committee Monday afternoon.
Flynn is the subject of an ongoing investigation, within the SIC and across Congress, delving into whether the Russian government sought or had inappropriate contact with high-level officials inside the Donald Trump for President campaign. Flynn was asked, earlier in May, to produce any documents he had related to his time serving Trump as an adviser, and his eighteen days as a Trump administration official. The due date for production is this Wednesday.
But while the move to plead the Fifth has fueled speculation that Flynn feels he could face consequences for potential contacts with Russia, it’s not particularly surprising that Flynn will avoid contact with the Senate committee. The committee hasn’t offered Flynn immunity for his testimony (even though Flynn and his lawyers ask for it regularly) so the former national security adviser has already refused several requests to appear or produce documents.
Members of the committee called Flynn’s request, then, “wildly preliminary,” but it now seems as though Flynn has decided he won’t offer any help to investigators until he’s successfully bargained for protection in the Russia probe. By pleading the Fifth, he’ll at least avoid a charge of contempt of court for refusing to hand over everything he has on the subject.
The more difficult part for Flynn—and for the Trump administration as a whole—will be maintaining that Flynn isn’t guilty, just because he decided to invoke his Constitutional rights. After all, the Trump team, including Flynn himself, has been adamant that refusing to testify gives one an air of culpability.
Pleading The Fifth Amendment
The amendment as proposed by Congress in 1789 reads as follows:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Origins of Pleading The Fifth
The right against self-incrimination is rooted in the Puritans’ refusal to cooperate with interrogators in 17th century England. They often were coerced or tortured into confessing their religious affiliation and were considered guilty if they remained silent. English law granted its citizens the right against self-incrimination in the mid-1600s, when a revolution established greater parliamentary power.
Puritans who fled religious persecution brought this idea with them to America, where it would eventually become codified in the Bill of Rights. Today, courts have found the right against self-incrimination to include testimonial or communicative evidence at police interrogations and legal proceedings.
At trial, the Fifth Amendment gives a criminal defendant the right not to testify. This means that the prosecutor, the judge, and even the defendant’s own lawyer cannot force the defendant to take the witness stand against his or her will. However, a defendant who does choose to testify cannot choose to answer some questions but not others. Once the defendant takes the witness stand, this particular Fifth Amendment right is considered waived throughout the trial. It’s all or nothing.
At a criminal trial, it is not only the defendant who enjoys the Fifth Amendment right not to testify. Witnesses who are called to the witness stand can refuse to answer certain questions if answering would implicate them in any type of criminal activity (not limited to the case being tried). Witnesses (as well as defendants) in organized crime trials often plead the Fifth, for instance.
But unlike defendants, witnesses who assert this right may do so selectively and do not waive their rights the moment they begin answering questions. Also, unlike defendants, witnesses may be forced by law to testify (typically by subpoena).
Michael Flynn And 45 Think Michael Flynn Is Guilty Of A Crime
Michael Flynn on asking for immunity:
Donald Trump on asking for immunity:
Michael Flynn on pleading the 5th amendment:
@HillaryClinton IT specialist takes 5th over 100 times. #Trump2016 #fieldoffight #AmericaFirst https://t.co/5U4R8FQ8JN
— General Flynn (@GenFlynn) June 23, 2016
Donald Trump on pleading the 5th amendment:
None of these aged well at all especially given the fact 45 believes Flynn has done nothing wrong, but is cryptically telling him to “stay strong“.
The bad news for Flynn is, even if he can avoid the Senate Intelligence Committee, he may not be able to avoid Robert Mueller, the special counsel appointed to handle the Trump-Russia investigation within the Department of Justice. That may prove to be a tougher interrogation to avoid.