Michael Flynn Took the Fifth – So What Happens Now?

Yesterday former National Security Advisor Michael Flynn informed the Senate Intelligence Committee he will not comply with its subpoena. The subpoena sought any documents in Flynn’s possession relating to any communications or dealings with Russian officials. Through his attorneys, Flynn claimed that turning over the documents would violate his Fifth Amendment privilege against self-incrimination.

Now that Flynn has taken the Fifth, what happens next? Basically there are three alternatives: 1) the Senate challenges the claim of privilege; 2) the Senate grants Flynn immunity; or 3) the Senate decides to accept Flynn’s assertion of privilege and move on with its investigation.

But the Chair of the Senate Intelligence Committee has reportedly expressed surprise that Flynn could take the Fifth in connection with a subpoena for documents. So the first question is:

Can He Do That?

No one has a right simply to refuse to comply with a subpoena. Flynn can’t just say, “No, thanks” and refuse to turn over the documents. He has to have a valid legal excuse. In this case, he claims that excuse is his Fifth Amendment right not to incriminate himself.

Flynn had already asserted the Fifth in connection with any possible testimony before Congress. Weeks ago he indicated he would cooperate and testify only if he was granted immunity. So far Congress has not taken him up on that offer.

But when it comes to producing documents, rather than testifying, the rules are more complicated. The Fifth Amendment generally does not protect the contents of documents that were voluntarily created. Suppose I write in my diary, “I shot the Sheriff, but I did not shoot the deputy.” Then I lose the diary and someone turns it in to the authorities, or investigators seize the diary while executing a search warrant.

The contents of the diary certainly incriminate me. But I can’t claim a Fifth Amendment right not to have it used against me. The government did not compel me to write in my diary. The Fifth Amendment limits only government compulsion of testimony and so does not apply.

Act of Production Privilege

When it comes to producing documents, the Fifth Amendment protection is not based on the contents of those documents. It’s based on something called “act of production privilege.” Act of production privilege recognizes there may be testimonial aspects involved in producing documents that are subpoenaed.

If I turn over subpoenaed documents I am admitting the documents exist, that I have them, and that I believe they are responsive to the subpoena. Forcing me to respond to the subpoena may be akin to putting me on the stand and requiring me to make those admissions. In that situation I may be able to refuse to comply, because to comply would be to incriminate myself.

Act of production privilege does not automatically apply to any document subpoena. If the government can establish that the existence of the records is a foregone conclusion – in other words, anyone in my position would be expected to have the types of records called for – it can argue there is nothing testimonial about turning them over. In addition, sometimes the government can show with some specificity that it already knows the documents exist and that I have them. In that case, the act of producing them adds nothing to the government’s knowledge and would not be privileged.

But sometimes the government knows little or nothing about the nature of potential documents or whether they even exist and is just fishing to see what’s out there. In such a case, responding to the subpoena by identifying and turning over documents may be a testimonial act.

Congress is investigating Flynn over possible contacts with Russian officials and for allegedly lying about those contacts. Documents reflecting any such contacts are therefore potentially incriminating. His attorneys argue the Senate has failed to demonstrate that the existence of the subpoenaed documents is a foregone conclusion or that the Senate already knows the documents exist. Accordingly, they say, to turn over any such documents would be a privileged testimonial act.

So now that Flynn has taken the Fifth and refused to turn over the documents, where does the investigation go from here?

Michael Flynn has invoked the Fifth Amendment

Former Nat’l Security Advisor Michael Flynn

Option One: Fighting the Privilege Claim

Congress is not required to accept Flynn’s assertion of privilege at face value. If the Senate believes the privilege claim is unfounded, if can seek to enforce the subpoena. The Senate Committee leaders have reportedly said they will “vigorously pursue” the production of the documents. There are different ways the Senate could do this.

One alternative is for the Senate to file a civil lawsuit against Flynn seeking to enforce the subpoena. In the lawsuit Flynn would assert his Fifth Amendment claim as a defense, and a judge would rule on whether that claim was valid. If Flynn lost, he could appeal. If he lost again, he could ask the Supreme Court to hear the case. In the end, if the courts found there was no privilege, a judge would order Flynn to comply with the subpoena. If he still refused, he could be punished for contempt of court.

A second alternative is for the Senate to refer the matter to the U.S. Attorney for the District of Columbia and ask him to prosecute Flynn for criminal contempt of Congress. After receiving the referral, the U.S. Attorney would decide whether to pursue the contempt case. If the U.S. Attorney chose to indict Flynn for contempt of Congress, Flynn’s defense would be that the Fifth Amendment justified his refusal to comply. Once again, the courts would ultimately rule on that claim.

The U.S. Attorney could also decide that Flynn’s Fifth Amendment claim is valid and prosecution for contempt would not be appropriate. This happened recently in the case of Lois Lerner, a former IRS official. When she took the Fifth and refused to testify before a Congressional committee about claims the IRS had improperly targeted certain political groups, Congress referred the matter to the U.S. Attorney for a contempt prosecution. The U.S. Attorney, however, decided that Lerner’s privilege claim was justified and declined to bring a case. (You can find my post with more detail about contempt of Congress and the Lerner case here.)

A referral to the U.S. Attorney turns control of the contempt decision over to the Executive Branch. But a third option is for Congress to charge Flynn itself, using its own inherent contempt power. Although this inherent contempt power is well established, Congress hasn’t used it since the 1930s.

If the Senate chose to go this route there would be a hearing before Congress, similar to a trial. Flynn would appear, be represented by counsel, and would assert his Fifth Amendment privilege as his justification for not honoring the subpoena.

If Congress rejected Flynn’s privilege claim and found him in contempt, it could have Flynn jailed until he complied with the subpoena. If that happened, of course, Flynn’s lawyers would immediately go to court seeking to have his Fifth Amendment rights vindicated and to have Flynn released. So once again we would ultimately end up with a court ruling on whether the privilege claim is valid.

These three options for enforcing the subpoena have one thing in common: none of them are quick. With court hearings and appeals it could easily take many months to resolve the privilege claims. If the Senate’s primary goal is to get the information quickly, it could instead pursue option two: granting Flynn immunity.

Option Two: Immunizing Flynn

Rather than fighting the privilege claim, the Senate could choose to grant Flynn immunity for his production of the documents. The immunity order would provide that the testimonial aspects of Flynn turning over the documents could not be used against him. In other words, the government could not introduce into evidence the fact that Flynn had possessed the documents or that he turned them over in response to a subpoena.

This more limited type of immunity is called, reasonably enough, act of production immunity. As with immunity generally, Congress has the power to grant act of production immunity even if the Department of Justice objects. Two-thirds of the members of the Senate Intelligence Committee would need to approve.

If granted act of production immunity Flynn would no longer have a basis to withhold the documents. If he continued to refuse to comply with the subpoena he would face contempt charges and could be jailed until he complied.

Immunizing Flynn would mean Congress would get the documents quickly, but there is a risk. The grant of immunity could end up torpedoing a future criminal prosecution of Flynn if a court found that the prosecution relied on information gathered from the documents produced. This happened in a case involving Webb Hubbell, President Bill Clinton’s former Associate Attorney General. Hubbell’s prosecution resulted in the leading Supreme Court decision on act of production immunity.

The Supreme Court ruled on act of production immunity in Webb Hubbell's case.

Former Associate Attorney General Webster Hubbell

United States v. Hubbell

Hubbell was subpoenaed by the Whitewater Independent Counsel to produce a large number of documents to the grand jury. He asserted his Fifth Amendment act of production privilege and refused to produce the requested documents or even admit they existed. The prosecutors granted him immunity for the act of production, and Hubbell turned over more than 13,000 pages of responsive documents.

Based on information contained in the documents, the Independent Counsel later indicted Hubbell for tax crimes and fraud. But the Supreme Court threw out the indictment, saying it violated Hubbell’s Fifth Amendment rights.

The government did not seek to use evidence that Hubbell had possessed or produced the documents – that direct evidence would have violated the immunity order. But the contents of the documents had provided information that led to Hubbell’s indictment.

The Supreme Court held that by compelling Hubbell to assemble and produce documents responsive to the subpoena the government had made use of the “contents of his mind.” The government had only learned of the information in the documents as a result of that compulsion. Therefore using the contents of the documents to prosecute Hubbell was a prohibited “derivative use” of Hubbell’s immunized act of producing them.

The law on act of production immunity is not completely clear. And this case would be different from Hubbell’s in at least one important respect. In Hubbell the documents were subpoenaed by the same grand jury that later indicted him. In Flynn’s case Congress has issued the subpoena. That would make it easier for prosecutors to argue that their own investigation was not influenced by the documents. However, given how easily information spreads through the Internet (and how easily it leaks from Capitol Hill), it might be a challenge for prosecutors to prove their case was not tainted.

Congress could decide it is willing to take that risk in order to get the information quickly. They have done it before, most famously in the case of Oliver North during the Iran-Contra investigation, where Congress’s grant of immunity ultimately resulted in North’s criminal convictions being reversed. But by granting immunity Congress could end up begin accused of sabotaging any potential future criminal case against Flynn. For now, at least, the chair of the Senate Intelligence Committee has reportedly said that immunity is “off the table.”

Option Three: Just Move Along

The third option for Congress at this point is simply to accept Flynn’s assertion of privilege and move on. There is a great deal of investigating still to be done. Congress may be able to get much of the same information from other sources.

In addition to the investigations on Capitol Hill, the Special Counsel investigation will be moving forward. Criminal prosecutors may be able to build a case against Flynn without the subpoenaed documents. If Flynn were to end up facing charges, prosecutors could potentially negotiate a plea deal. As part of that deal Flynn could agree to turn over the documents and otherwise cooperate in the investigation of others.

Although there is public pressure to get to the bottom of what happened, the investigation is still in its infancy. Granting immunity could end up being a mistake if Flynn turns out to be one of the principal bad actors. Congress and the Special Counsel have plenty of time to pursue other avenues.

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Michael Flynn’s Immunity Request: What it Means and How Immunity Works

What does Michael Flynn’s immunity request mean?

President Trump’s former National Security Advisor Michael Flynn has offered to testify about potential Russia connections to the Trump campaign if he is given immunity from prosecution. This raises questions about why he would seek immunity, how the immunity process works, and the potential implications for Flynn and the Trump administration. So here is a primer on Immunity 101, with a focus on the Flynn case.

Michael Flynn's immunity request raises tough issues for Congress

Does This Mean Flynn Is Guilty of Something?

Many sources have pointed out that when talking about aides to Hillary Clinton, Flynn himself suggested that if you seek immunity it probably means you’re guilty of a crime. President Trump has said the same thing and has also urged Flynn to insist on immunity. If you play that syllogism out the conclusion is pretty clear.

But the truth is usually more complicated. Seeking immunity doesn’t always mean you are guilty of something. It does indicate the witness has at least some reason to be concerned about potential criminal exposure. In a politically-charged investigation a witness could fear an unfair prosecution even if convinced he did nothing wrong. Flynn’s attorney has said that in the current political maelstrom Flynn would be crazy to testify without immunity. That’s probably sound advice.

Even without knowing the details of what Flynn would say, it’s not surprising he would seek immunity at this early stage. That doesn’t necessarily mean Flynn has some huge bombshell to drop into the middle of the investigation. It also doesn’t necessarily mean Flynn has information about wrongdoing by others. He may be concerned only about his personal liability for things such as his foreign lobbying activities or potentially lying to the FBI. Or it may just be that his lawyer is acting out of an abundance of caution and Flynn ultimately will not be implicated in any crime at all.

Flynn has maximum leverage right now. Nobody can force him to speak. There’s little downside for Flynn in remaining silent and little upside to testifying now without a deal. His lawyer has tantalizingly dangled the claim that Flynn “has a story to tell” and would be happy to tell it if he receives immunity. There’s a lot of political pressure to get to the bottom of this controversy. Investigators may be tempted to give a quick grant of immunity in order to get Flynn’s story. That’s no doubt what Flynn’s attorney is hoping. That seems like a smart play.

What Does Immunity Cover?

Immunity comes into play when a potential witness has a Fifth Amendment right not to incriminate himself. This right to “take the Fifth” applies not just in court but in other proceedings as well, including Congressional investigations. The request for immunity indicates the witness believes that if he testifies truthfully his testimony could potentially implicate him in some kind of criminal activity.

Immunity means only immunity from criminal prosecution. You can’t get immunity to protect yourself from embarrassment, political damage, civil suits, or other non-criminal fallout. A witness who testifies under a grant of immunity is still potentially subject to all of these other consequences — in fact, those other consequences may be more likely once the witness can no longer remain silent.

Immunity also doesn’t protect you from a prosecution for perjury, obstruction of justice, or related charges based on your immunized testimony — just ask Barry Bonds.

The federal immunity statutes,18 U.S.C. 6001-6005, provide what’s known as use and derivative use immunity. That means whatever the witness says can’t be used against him either directly or indirectly in any criminal proceeding. (Transactional immunity – a broader promise never to charge the witness at all – is not provided for by statute. It can only be obtained by agreement with prosecutors and is extremely rare.)

Direct use would be taking a transcript of the witness’s testimony and introducing it at his criminal trial. Derivative use means using the witness’s testimony to track down other leads and discover new information that is then used against the defendant. For example, if investigators used information learned from the immunized testimony to find new witnesses, those witnesses could not be called to testify against the immunized witness in a criminal trial.

The immunity order is supposed to ensure that, at least as far as criminal proceedings are concerned, the witness remains in exactly the same legal position as if he had never testified at all. Nothing that comes out of the immunized witness’s mouth can lead to evidence used against him in a criminal case.

Congress could choose to grant Michael Flynn's immunity request

Who Can Grant Immunity?

Under the federal immunity statutes immunity can be granted by the Department of Justice or by Congress. Administrative agencies can grant immunity as well, but they need the Attorney General’s approval. Congress does not – it can grant immunity even if DOJ objects.

If immunity is sought in a court or grand jury proceeding, the Department of Justice obtains an immunity order from a district court judge. DOJ will seek the immunity order after determining the public interest in obtaining the testimony outweighs the public interest in potential prosecution of the witness. The judge signs the order but does not review the wisdom of the decision — whether to grant immunity is  up to the Executive Branch.

Congress can likewise seek immunity for any witness called to testify in any Congressional proceeding or committee hearing. In a proceeding before the full House or Senate the request for immunity must be approved by a majority of the members. If the testimony is before a committee, the request must be approved by two-thirds of the members of that committee. Congress must give ten days notice of the request to the Attorney General.

The Attorney General can apply to the court to delay the issuance of the Congressional immunity order for up to an additional twenty days. DOJ can ask Congress not to grant the immunity, but cannot prevent it if Congress insists. Once again, the immunity order is issued by a judge but the court does not review the merits of the decision to grant immunity.

Once a court issues an immunity order, the witness no longer has a Fifth Amendment right to remain silent. The order directs the witness to testify and provides that nothing the witness says can be used against him, directly or indirectly, in a criminal proceeding. If the witness continues to refuse to testify, he is subject to contempt.

News reports refer to Flynn seeking immunity from the FBI, but the FBI itself cannot grant immunity. Immunity in connection with the FBI investigation of the Trump campaign would have to be granted by Department of Justice prosecutors working with the FBI. With Attorney General Sessions recused and calls for an independent prosecutor, there might currently be questions about who exactly within DOJ would make such a decision.

The FBI is investigating but as far as we know no grand jury proceeding has begun. For now, at least, Flynn’s immunity request appears to be primarily in connection with the Congressional investigations. If immunity were granted at this stage it appears Congress would grant it in order to have Flynn testify on Capitol Hill.

News sources on Friday reported that the Senate Intelligence Committee has already rejected Flynn’s request for immunity, calling it premature. Of course, that does not prevent the Committee from reconsidering and granting the request down the road. There have been no reports yet of any decision by the House Intelligence Committee, whose investigation seems mired in partisan gridlock.

How Will Investigators Decide Whether to Grant Michael Flynn’s Immunity Request?

Immunity should only be granted if there is a reasonable basis for the witness’s claim of self-incrimination. Investigators obviously don’t want to run around handing out immunity to every witness who refuses to talk without knowing what the witness will say. This is the “buying a pig in a poke” problem – you don’t want to give someone a free pass on unknown criminal conduct and have him end up confessing to the Kennedy assassination or something.

The most common way to determine whether immunity is appropriate is through a proffer session, either from the witness himself or from his attorney. In such an off-the-record proffer the witness or counsel tells investigators what the witness would say if granted immunity. The investigators, in return, agree not to use anything said during the proffer against the witness.

Before any immunity decision is made, Flynn or his attorney likely would give such a proffer to investigators. They may have already done so.

But the witness is not required to give a proffer. Flynn could remain silent and take the position, “You want to know what I have to say? Give me immunity.” This would be a hardball play by Flynn and his lawyer, but again, at the moment they have the most leverage. Granting immunity under those circumstances would certainly be a high-stakes gamble for Congress.

What If the Fifth Amendment Claim Is Bogus?

If a witness claims he has a Fifth Amendment privilege and investigators don’t believe the privilege claim is valid, they should refuse to grant immunity. They can go ahead and subpoena the witness to testify and see whether he in fact invokes the Fifth. Once actually on the stand the witness may decide to testify after all.

If the witness does refuse to testify, investigators can challenge the Fifth Amendment claim in a hearing before a judge. If a judge determines the privilege claim is valid, the witness may continue to remain silent unless and until he is granted immunity. If the judge finds there is no valid Fifth Amendment privilege, the judge may order the witness to testify. If the witness still refuses, he is subject to punishment for contempt of court or contempt of Congress. He may be jailed for contempt and held until he agrees to comply with the court order and testify.

This all takes a fair amount of time, of course, particularly if either side ends up appealing any court orders. If investigators don’t want to wait and the Fifth Amendment claim is even arguably valid, they may decide just to grant the immunity. That keeps the investigation moving rather than spending months litigating the privilege claim.

Does Getting Immunity Mean Flynn Could Never Be Prosecuted?

Strictly speaking, no. A grant of immunity under the federal immunity statutes doesn’t actually mean there is no way you can ever be prosecuted. The statutes provide only that in the event you are prosecuted your own testimony can’t be used against you directly or indirectly.

Theoretically the government can still prosecute a witness who has testified under a statutory grant of immunity. In such a case the government must establish that none of the evidence it will use is derived in any way from the immunized testimony. If there is a question the court will hold a hearing, and the government must prove by a preponderance of the evidence that it has an independent basis for each piece of evidence.

But practically speaking, if Congress agrees to immunize Flynn he almost certainly will never be prosecuted. Immunized witnesses rarely are. Even if they want to prosecute, it’s usually quite difficult for the government to meet the burden of proving that its case was not tainted by immunized testimony. The most famous example of this problem involves the prosecution of Oliver North.

Oliver North testifies on Capitol Hill

Oliver North testifies on Capitol Hill

Lessons of the Oliver North Case

Oliver North was a member of the National Security Council staff under President Reagan. He was implicated in the Iran-Contra affair, where the U.S. government illegally sold weapons to Iran and used the money to fund the Contra rebel group in Nicaragua. Iran-Contra led to an Independent Counsel investigation, and North was one of the targets of that investigation.

While the criminal investigation was going on, North was subpoenaed to testify before a joint Congressional committee that was also investigating Iran-Contra. Congress granted North immunity, against the wishes of the criminal prosecutors. He subsequently testified for several days and admitted to his role in the scheme, as well as to shredding relevant documents and lying to federal investigators.

North was later indicted and convicted of obstruction of justice and other crimes. But the U.S. Court of Appeals for the D.C. Circuit overturned his conviction on the ground that it improperly relied on the fruits of his immunized testimony.

Prosecutors and agents working on the criminal case had taken great pains to avoid any exposure to North’s Congressional testimony, which was widely televised. But the Court of Appeals held that, for each individual government witness called at trial, prosecutors had to prove the witness had an independent basis to recall every fact about which they testified. The government was required to show that the witness’s recollection had not been influenced in any way by viewing North’s immunized testimony. Prosecutors ultimately were unable to meet that burden and dismissed the case.

The same concerns surround a decision to immunize Flynn. Congress could take steps to minimize any potential exposure to the testimony, such as having Flynn testify only in a closed session, but the risk to any potential future criminal case would still be substantial.

The Congressional grant of immunity in North’s case ended up torpedoing his criminal prosecution. Congress must take great care when considering whether to immunize Flynn, lest it be accused of doing the same thing in his case.

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