Michael Flynn is expected to plead the Fifth and refuse to comply with a Senate subpoena
Page Pate: Congress should grant Flynn immunity, so he can begin to answer questions regarding potential Russia-Trump campaign collusion
Editor’s Note: Page Pate, a CNN legal analyst, is a criminal defense and constitutional lawyer based in Atlanta. He is an adjunct professor of law at the University of Georgia, a founding member of the Georgia Innocence Project, a former board member of the Federal Defender Program in Atlanta, and the former chairman of the criminal law section of the Atlanta Bar Association. Follow him on Twitter @pagepate. The opinions expressed in this commentary are his.
Michael Flynn has a story to tell, but we may never get to hear it.
According to his lawyer, Flynn plans to invoke his Fifth Amendment right and refuse to comply with a document subpoena from the Senate, unless and until he is granted immunity.
So far, senators haven’t been willing to take Flynn up on his offer. But they should. Flynn could produce valuable information into alleged ties between the Russian government and the Donald Trump campaign.
But Flynn doesn’t have to talk to Congress or anyone else about this case if he doesn’t want to. He has a Fifth Amendment right against self-incrimination. The Fifth Amendment also protects Flynn if he refuses to produce documents requested by a subpoena. Flynn only needs to show that “the act of producing” the documents may be incriminating, and that he has a realistic chance of being prosecuted.
The threat of prosecution for Flynn is real. This week, House Democrats released a letter suggesting the former national security adviser made a false statement to investigators when renewing his security classification. If Flynn told investigators that his trip to Moscow was paid for by “US companies” when it was in fact sponsored by a Russian media outlet, then he lied. And if he lied to these investigators, he committed a federal felony offense.
Even before this letter was released, we knew two things about Flynn’s actions that could point to a crime – he received a significant amount of money from foreign sources – the Russian media outlet RT and the Turkish government – without disclosing those payments, and he did not disclose his foreign contacts as he was required to do on his security clearance form. Add an alleged false statement charge to the mix, and you have a hat trick of felonies.
Flynn may be stone-cold guilty, but that doesn’t mean he must be prosecuted. He could be a valuable source of information for both Congress and the special counsel.
Flynn can presumably provide information about who else in the White House – if anyone – may have known about his foreign compensation and contacts and his later failure to disclose them. He may also know about any Russian involvement with the Trump campaign or transition team.
In other words, Flynn is exactly the kind of high-level insider that prosecutors love to flip.
I’m sure what Flynn and his lawyer really want is complete immunity from prosecution. Only Robert Mueller, the recently appointed special counsel, can give him that. There are a variety of factors that Mueller will likely consider before deciding to give Flynn complete immunity, though, at this stage of the investigation, it’s far too early for Mueller to make that call.
But it’s not too early for Congress to agree to Flynn’s request to grant him a more limited type of immunity that will allow Flynn to produce documents and testify before Congress without fear that his statements, or his production of documents, will be later used as evidence to prosecute him.
And, frankly, this is the only way Congress can get what it wants from Flynn. Once he has immunity, then Congress can force him to comply with the subpoena under threat of a real contempt action – being sent to jail.
Though Congress could hold Flynn in contempt now, they have no power to send him to jail for refusing to turn over the requested documents. Congress needs the cooperation of the Justice Department or the special counsel to hold Flynn in criminal contempt. And they also need a judge willing to enforce it.
At this point, a judge would be reluctant to hold Flynn in contempt because he has a legitimate Fifth Amendment right to not produce the requested documents. But if Flynn gets immunity, he cannot hide behind the Fifth Amendment.
With immunity, Congress can also require him to personally appear before them and answer questions about what he did, why he did it and who else may have known about it.
If you think that Flynn shouldn’t be able to completely avoid prosecution just so Congress can get its hands on these answers, don’t worry. Unlike the complete immunity from prosecution that Mueller can grant, a grant of limited immunity from Congress in this situation isn’t a “get out of jail free” card. Although it may make things a little messier, Flynn can still be prosecuted by Mueller if there is enough evidence to show he committed a crime.
Congress has an opportunity to get the documents it wants and to hear Flynn’s story about who knew what and when during the campaign. All Flynn wants in return is a little bit of immunity. That’s a small price to pay for what may be a blockbuster of a story.