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A General’s silence and a nosy neighbor

Retired Army lieutenant general and former national security advisor for the Trump Administration Michael Flynn invokes the 5th Amendment in a Senate hearing concerning Russia’s involvement in the 2016 presidential election.

Photo: Michael Flynn by NYMag (Courtesy of Google)

No one likes a nosy neighbor. Accusations that Russia was involved in the 2016 U.S. presidential election, perhaps even going as far as to sway the votes of American citizens, have plagued the Trump administration since before President Trump’s inauguration. The accusations continued to gain traction as head staff members and advisors were expelled from the White House for their connections to Russia. One such advisor was Michael Flynn, a retired Army lieutenant general.

Michael Flynn, originally from Middletown, Rhode Island, was selected to be Trump’s national security advisor. He attended the University of Rhode Island and commissioned as an officer in the Army soon thereafter. On paper, Flynn’s selection made sense; he had been the director of intelligence for the Joint Chiefs of Staff and was a top intelligence official in Afghanistan from 2009 until 2010 before retiring from the Army in 2014. After the election, Flynn then joined President Trump’s administration as a national security advisor.

The Department of Justice…warned the Trump administration that Flynn had been imparting misleading information. He was then expelled…for lying to Vice President Pence.

Soon after taking the national security advisor position, Flynn came under scrutiny for his alleged ties to Russia. He had spoken with the Russian Ambassador to the U.S. Sergey Kislyak on the same day new sanctions were placed against Russia, which led some people to believe that phone calls between the two were proof that they were in fact discussing the sanctions. Vice President Pence stated to the contrary, “They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia,” but rather that the two had spoken about setting up a meeting between President Trump and Russian President Vladimir Putin. The Department of Justice, however, warned the Trump administration that Flynn had been imparting misleading information. He was then expelled from the Trump administration for lying to Vice President Pence.

After his termination, the Pentagon began an investigation concerning Flynn accepting money from the Russian and Turkish governments after retiring from the Army. Representative Elijah E. Cummings (D-MD) sent a letter to the Pentagon stating Flynn had been warned by a Department of Defense attorney about accepting money from foreign sources post retirement. Despite these warnings, sources show he received $45,000 from the Russian government to attend a gala in Moscow with Putin. In addition, Turkey gave him over a half million dollars to be its representative with Inovo BV, which is a Dutch company that paid Flynn to lobby on behalf of the Turkish government. Such payments are permissible if the Department of Defense pre-approves them. Unauthorized payments, on the other hand, are seen as a debt to the foreign country and are to be paid back either through withholding pension or retirement benefits. The debt, however, is capped at how much retirement or pension is given to the retiree during the same period as the unauthorized employment. For example, the Inovo BV agency only lasted three months, thus the debt is reduced to three months of retirement pay.

Around the same time as the Pentagon’s investigation, the Senate Intelligence Committee, chaired by North Carolina U.S. Senator Richard Burr (R-NC), announced it was investigating Russia’s involvement with the 2016 Presidential Election and the Trump campaign. At first, Flynn seemed eager to be a part of the investigation, even going so far as to volunteer to speak at future committee hearings; however, Flynn’s offer came with one condition—he wanted immunity from the testimonial evidence that would be presented at the Senate hearing.

If the Senate were to grant immunity to Flynn, Special Counsel Mueller would have a tougher time investigating Flynn since the immunized information given to the Senate would likely be the same information they would seek in the Department of Justice’s investigation.

Immunity for Flynn would mean no criminal prosecution connection to the testimony given at the Senate hearing on Russia’s involvement. Attorney General Jeff Sessions recused himself from the Russia investigation and appointed former FBI Director Robert Mueller as special counsel to lead the Department of Justice’s investigation in the matter. If the Senate were to grant immunity to Flynn, Special Counsel Mueller would have a tougher time investigating Flynn since the immunized information given to the Senate would likely be the same information they would seek in the Department of Justice’s investigation.

The Senate did not grant Flynn immunity, but has instead subpoenaed any documents related to the investigation that Flynn may possess. Rather than handing the documents over to the Senate, however, Flynn invoked his Fifth Amendment right against self-incrimination. In a letter issued by Flynn’s attorney, the reason for Flynn’s invocation of this right is because of an “escalating public frenzy against him,” and because he “has more than a reasonable apprehension that any testimony he provides could be used against him.” The letter stated his invocation of the 5th Amendment was not an admission of guilt, and it should be noted that for legal purposes this statement is true.

The invocation of the Fifth Amendment right against self-incrimination is not a sign of guilt, nor can it be used against a defendant in a hearing. Despite what candidate Trump said during his campaign, asking—“If you’re innocent, why are you taking the Fifth Amendment?”—people “take the Fifth” for many reasons. An exception to the Fifth Amendment exists in regards to documents when the existence of those documents in the accused’s possession is “a forgone conclusion.” This exception, articulated in 1976 in Fisher v. United States states, “[I]f the existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers,” then compelling the defendant to give up those documents does not violate his or her Fifth Amendment. This exception only applies to documents that are testimonial in nature.

Flynn’s lawyers argue that even if the government knows their client has been in contact with Russia recently, the government’s requests are too broad and lack the specificity needed to successfully compel Flynn to turn over the documents under the “forgone conclusion” doctrine.

The government does know Flynn has been in contact with the Russian ambassador and has even traveled to Russia in years past. Documents requested by the government include a list of meetings with Russian officials, communications records with or involving Russians over the past couple of months, and all communication records with the Trump campaign that relate in any way to Russia. Flynn’s lawyers argue even if the government knows their client has been in contact with Russia recently, the government’s requests are too broad and lack the specificity needed to successfully compel Flynn to turn over the documents under the “forgone conclusion” doctrine.

Flynn is not free and clear of any consequences simply because it is unlikely that the “forgone conclusion” doctrine will work. In the past, the Senate has held people in contempt for refusing to comply with its subpoenas. Enforcing contempt charges requires the Department of Justice to decide whether or not to pursue those charges. For example, the House found former Attorney General Eric Holder in contempt, but a federal judge decided not to enforce the House’s contempt charges. The Senate or the Department of Justice could choose to do the same for Flynn.

For now, Michael Flynn has staved off disclosing what he knows concerning the Russians and the Trump administration. He is likely to continue to stand behind his Fifth Amendment right against self-incrimination, which is one of the many rights he fought to protect while in the Army. His former employer President Trump has backed Flynn’s decision to take the Fifth; however, Flynn may still decide to tell his story to the Senate Intelligence Committee if “the circumstances permit.” His lawyers state their client “certainly has a story to tell.” Until then, the country waits for the General to break his silence.

Claire Scott
About Claire Scott (17 Articles)
Claire Scott is a third year law student and serves as a Senior Staff Writer for the Campbell Law Observer. Originally from Chesapeake, VA, Claire is a Campbell University alumi. After her 1L summer, she worked in the Harnett County NC District Attorney's Office as well as the District 11A Veteran Treatment Court. Her legal interests include estate planning and veteran law.