Toxic Environment Leads Flynn to Take the Fifth

Lt. Gen. Michael Flynn, President Trump’s former national security adviser, will plead the Fifth Amendment instead of testifying before the Senate Intelligence Committee.

Flynn’s lawyers told the Senate that the current political environment was leading to an “escalating public frenzy.”

“One of the Fifth Amendment’s basic functions … is to protect innocent men … who otherwise might be ensnared by ambiguous circumstances.”

And according to one former federal prosecutor, Flynn and his attorneys made the right choice given the circumstances.

“It’s ‘Legal Representation 101,'” said Joseph diGenova, the former U.S. attorney for the District of Columbia under President Ronald Reagan. “At this point, the best thing for him to do — you say nothing to anyone, period.”

Flynn’s decision comes less than two weeks after the Senate panel issued a subpoena for Flynn’s documents as part of the panel’s investigation into Russia’s meddling in the 2016 election, according to Fox News.

Flynn has been the subject of a huge media and political maelstrom. In the near-hysterical environment that surrounds alleged Russian interference in the 2016 campaign, Flynn’s attorneys likely thought talking to the committee without immunity was simply not worth the risk.

Pleading the Fifth Amendment will irk Congress and investigators, but it prevents authorities from trying to trap Flynn by producing conflicting statements. The pleading of the Fifth also comes shortly after Deputy Attorney General Rod Rosenstein appointed a special counsel, Robert Mueller, to investigate the Russian hacking and anything related.

In this environment, diGenova agreed, it’s not worth it to testify without immunity.

"That's what any good lawyer would do for his client in this situation," said diGenova.

Flynn will also decline to provide records to the committee, since that alone could be viewed as testimony, according to a copy of the letter Flynn's attorneys sent to the Senate Intelligence Committee.

Flynn's lawyers noted in a letter to the Senate panel that the Supreme Court held in Ohio v. Reiner,in 2001, that "one of the Fifth Amendment's basic functions ... is to protect innocent men … who otherwise might be ensnared by ambiguous circumstances."

Even truthful testimony conveyed by an "innocent witness" can be used in a way that could ensnare innocent people, the Supreme Court held.

Flynn is the target of other congressional investigations, an ongoing FBI probe, and a separate federal investigation in Virginia, according to Fox News.

But special prosecutor Mueller, the former FBI chief under former Presidents George W. Bush and Barack Obama, is expected to oversee what will be the main investigation into Russian meddling in the U.S. campaign. It's also expected Mueller will investigate any possible ties between the Trump campaign and Russian hackers.

It was that appointment of Mueller, on Wednesday, that led Flynn's attorneys to advise Flynn to take the Fifth.

"The context in which the [Intelligence] Committee has called for General Flynn's testimonial production of documents makes it clear that he has more than a reasonable apprehension that any testimony he provides could be used against him," Flynn's attorneys wrote in a Monday letter to the committee's chairman, Sen. Richard Burr (R-N.C.).

The appointment of Mueller puts Flynn in a defensive position, the attorneys wrote, and gives "rise to a constitutional right not to testify."

No evidence has ever been publicly presented that anyone associated with Trump colluded with the Russians on the hacking of email accounts for the Democratic National Committee and Hillary Clinton's campaign chairman, John Podesta, but the discovery of such a link has turned into an obsession for Democrats and the media.

Flynn, a retired Army lieutenant general, resigned from his position as national security adviser on Feb. 13 at Trump's request.

The decision to oust Flynn came after he misled Vice President Mike Pence on the substance of a phone conversation with the Russian ambassador in late December. Flynn said sanctions were not discussed.

An unidentified government source leaked a transcript of the phone call with the Russian ambassador to The New York Times, kickstarting a series of events that led to Flynn's firing.

Last Modified: May 22, 2017, 4:55 pm

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