Flynn’s Rejection of the Congressional Subpoena and the 5th Amendment’s Hazy Line.
On February 13, 2017 General Flynn tendered his resignation declaring “I have always performed my duties with the utmost integrity and honesty.” Today he invoked the 5th Amendment, refusing to honor a Congressional subpoena demanding he turn over all documents related to any conversations he had with Russian business leaders or diplomats. When it was Clinton aides Trump suggested only the guilty invoke the 5th Amendment:
“You see the mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?”
Flynn who seeks immunity to testify, or honor the subpoena, similarly said about Clinton aides “When you are given immunity, that means you probably committed a crime.”
Moving past the galling hypocrisy to the legality of the matter, Flynn’s invoking the 5th Amendment presents a hazy legal question that is a close call. The subpoena does not ask Flynn to testify, as Lois Lerner was asked to do. If it did his right to invoke the 5th Amendment would be unquestioned. Flynn has been asked, so far, to do nothing more than produce documents.
The key case is Fisher v. United States, 425 U.S. 391 (1976). That case held that documents are generally not protected by the 5th Amendment self incrimination privilege even if the documents are personal contain incriminating information. The theory is the documents are neither testimonial in nature, nor compulsory, having been voluntarily prepared by the defendant.
However, there is an important exception to this rule. If the mere production of the documents themselves incriminates the person seeking to invoke the privilege, then the privilege applies. The issue is not the incriminating character of the documents themselves, but whether the the person seeking to apply the privilege potentially incriminates himself, by admitting the documents exist, are in his possession or control, and are responsive to the subpoena.
In this case, Congress asked for Flynn for all records of phone calls, or other communications, with Russian agents, businessmen, diplomats and so forth. Flynn’s attorneys will argue that for him to produce such records is tantamount to him admitting such communications with Russians occurred. Flynn’s attorneys will argue this is no different than him being asked “did you talk to Russians” and his being compelled to answer “yes.” Flynn’s attorneys will argue (that presuming such records exist) it matters not what the records contain, Flynn’s merely having creating them and controlling them, is incriminating.
If the papers were seized, for example pursuant to a search warrant, then that would involve no such act of admission by Flynn. Their possibly damaging content would be admissible and not regarded as compelling testimony from Flynn even though he wrote the documents. However, asking Flynn to decide to produce, and which documents meet the demands of the subpoena, might be deemed to include a compulsory testimonial component granting him the right to refuse to comply with the subpoena on 5th Amendment grounds.
It is a close call. Congress could grant him immunity and compel the subpoena that way, but it is probably thought to be too early for that. Congress could subpoena others who might have the records. Or Congress could force Flynn to test the limits of this close 5th Amendment in court.