Constitution Daily

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Understanding Michael Flynn’s Fifth Amendment case

May 24, 2017 by Scott Bomboy


Former national security adviser Michael Flynn seemingly won’t comply with congressional subpoenas to produce records related to a Senate investigation. What’s the constitutional basis for this controversy and can the Senate hold Flynn in contempt?

On Monday, Flynn’s lawyers said he wouldn’t act on a subpoena from the Senate Intelligence Committee, which asked the retired Lieutenant General to supply a list of contacts he had with any Russian officials between June 16, 2015, and Jan. 20, 2017. Flynn was one of four people involved with President Donald Trump’s campaign compelled to produce records by the committee.

Then on Tuesday, the Senate issued two new subpoenas to Flynn related to consulting businesses run by Flynn before he became national security adviser. Committee chairman Richard Burr of North Carolina said the committee sought “very specific” information in Flynn’s business records. The Senate wants Flynn’s testimony and documents related to its investigation of possible Russian interference in the 2016 general election.

Flynn’s legal team believes the act of producing the records will have the same effect as live testimony by Flynn about events that could potentially incriminate him. “Producing documents that fall within the subpoena's broad scope would be a testimonial act, insofar as it would confirm or deny the existence of such documents,” they said on Monday. The attorneys also claimed that Robert Mueller’s appointment to lead a Justice Department investigation on similar grounds was another reason for Flynn to consider his “constitutional right not to testify.”

At the heart of the controversy are 13 words that make up part of the Fifth Amendment, which state that no person “shall be compelled in any criminal case to be a witness against himself.”

The broad powers of the Constitution’s Article I have long been seen as allowing a body like the Senate to conduct such investigations. The specific congressional power to issue subpoenas was defined in the 1920s in the wake of the Teapot Dome scandal. In McGrain v. Daugherty (1927), the Supreme Court said that, “Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain that which is needed.” The Supreme Court in 1927 also cited examples where contempt powers for people who didn’t honor subpoenas dated back to the British parliament and colonial legislatures that existed before the Constitution was ratified.

Over the years, the Supreme Court has ruled that the Fifth Amendment privilege against self-incrimination applies to people testifying before Congress as part of an investigation, and in some cases, requests for records could fall into that protected category. These precedents would allow a person in appearing before Congress “to take the Fifth” in front of investigators and committee members, as well as to claim that producing documents is protected by the Fifth Amendment.

In general terms, Constitution Daily Supreme Court correspondent Lyle Denniston explained these limitations in an article we published in 2014 about a Fifth Amendment claim in the New Jersey “Bridgegate” cases.

“What is most complicated about ‘pleading the Fifth’ is claiming that protection to head off a demand for records. It is by no means clear that, if records are not really the personal papers of a specific individual, that the individual can claim the privilege for those papers, even if their revelation would be incriminating.  Again, the privilege is a personal one, not one that goes with one’s position,” Denniston explained.

“If prosecutors or investigators identify on their own a specific set of papers, or a kind of document, and they can show that it is not personal to the individual who possesses it, the likelihood is that the Fifth Amendment protection would not apply. But prosecutors or investigators cannot go on what is called a “fishing expedition,” by requiring an individual who is targeted by their investigation to identify the papers that would respond to what the investigation’s goal is,” Denniston added. “The Supreme Court has ruled explicitly that an individual can ‘claim the Fifth’ against a demand that he or she find the responsive papers, identify them, and then hand them over. That is called, technically, the ‘act of production’ and it is protected from compulsion.”

A recent Congressional Research Service report, just issued two weeks ago, cites several examples where the Supreme Court has considered the issue of producing documents under subpoena. “The privilege protects a witness against being compelled to testify but generally not against a subpoena for existing documentary evidence. However, where compliance with a subpoena duces tecum would constitute implicit testimonial authentication of the documents produced, the privilege may apply,” the CRS says. (A subpoena duces tecum is a request for a witness to produce documents in court or at a hearing.)

The CRS cites several cases where the production of business records was at issue, and Flynn’s attorneys named a more-recent Supreme Court decision in their letter to Senate investigators, United States v. Hubbell.  In an 8-1 decision, Justice John Paul Stevens in his majority decision tackled one of two questions related to Webster Hubbell’s involvement in the Whitewater controversy: Whether the Fifth Amendment privilege protects a witness from being compelled to disclose the existence of incriminating documents that the government is unable to describe with reasonable particularity.

“It was unquestionably necessary for respondent to make extensive use of the contents of his own mind in identifying the hundreds of documents responsive to the requests in the subpoena,” Stevens said back in 2000. “The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.”

“In sum, we have no doubt that the constitutional privilege against self-incrimination protects the target of a grand jury investigation from being compelled to answer questions designed to elicit information about the existence of sources of potentially incriminating evidence. That constitutional privilege has the same application to the testimonial aspect of a response to a subpoena seeking discovery of those sources,” Stevens concluded.

For now, the Senate is awaiting comment from Flynn’s attorneys. But in past cases where the Senate has sought contempt charges, the process has been slow and not always successful.

In one scenario, Flynn also could be charged under a criminal contempt statute, which would send the matter to the executive branch for criminal prosecution. That would put the ball in the court of Attorney General Jeff Sessions to consider contempt of Congress charges. The Senate also can rely on the judicial branch to enforce a congressional subpoena under a civil judgment from a federal court. If Flynn didn’t comply, he could face contempt of court charges and not contempt of Congress charges.

As for Flynn or anyone facing jail time if found in contempt of Congress, the last person to receive a prison sentence in a related case was Rita Lavelle in 1983. The former EPA official won her contempt case in court, but she was found guilty on a perjury charge and served a short sentence.

According to CRS, at least six people have faced contempt charges made by the Senate in civil court since 1979, but the Senate hasn't used that power in the case of an executive branch official who refused to comply with a subpoena.

Scott Bomboy is the editor in chief of the National Constitution Center.


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