Michael Flynn rejects subpoena to hand over documents, invokes Fifth Amendment
National Security Advisor Michael Flynn
WASHINGTON (AP) - Attorneys for Michael Flynn say that a daily "escalating public frenzy against him" and the Justice Department's appointment of a special counsel have created a legally dangerous environment for him to cooperate with a Senate investigation.
That's according to a letter obtained by The Associated Press that was written on behalf of the former national security adviser under President Donald Trump. The letter, sent Monday by Flynn's legal team to the Senate Intelligence committee, lays out the case for Flynn to invoke his Fifth Amendment protection against self-incrimination and his decision not to produce documents in response to a congressional subpoena.
The letter says that the current context of the Senate's investigation into Russia's meddling in the 2016 election threatens that "any testimony he provides could be used against him."
The Fifth Amendment right against self-incrimination being invoked by Flynn, is a bedrock legal principle. It's enshrined in the Constitution's Bill of Rights and relied on by witnesses before Congress and the courts alike.
A look at those protections and elements of the Flynn case:
NO SELF-INCRIMINATION
The amendment provides numerous legal protections for defendants, including the right to have evidence presented to a grand jury. But the best-known provision is one that shields a witness from self-incrimination. Witnesses have invoked it in order to avoid testifying against themselves, or to avoid being forced to produce documents that could be used against them.
NOT AN ADMISSION OF GUILT
Invoking the Fifth Amendment does not mean that a witness is guilty of any crime or even has anything to hide. Instead, it can reflect a witness's concern that any testimony given would be interpreted in an unfavorable way, or that it could be used as evidence in a prosecution. Ironically, both Flynn and Trump pointed to invoking the Fifth Amendment as a sign of guilt during the Hillary Clinton email investigation.
IN FLYNN'S CASE
Flynn is refusing to provide documents to a Senate committee investigating Russian interference in the 2016 presidential election. A subpoena from the Senate intelligence committee requests a list of all contacts between Flynn and Russian officials over an 18-month period. In a letter to the committee Monday, lawyers for Flynn say that he is not admitting wrongdoing but is looking to protect himself from an "escalating public frenzy" of "outrageous allegations."
A PROBLEM FOR INVESTIGATORS
The committee's investigation could be hampered by Flynn's decision to invoke the Fifth Amendment, but lawmakers could try to get some documents on their own or get information they want from another witness. The committee also could file a claim in federal court to try to force Flynn to testify and produce documents, but that could take months.
WHAT ABOUT IMMUNITY?
The committee could offer Flynn immunity in exchange for his testimony, but that could complicate any subsequent Justice Department criminal prosecution. The FBI would not be able to use the immunized testimony, or evidence derived from it, to build a case, though a witness can still be prosecuted for false statements or for evidence of other crimes. The committee would have to alert the attorney general before making such an offer.
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Associated Press writer Deb Riechmann contributed to this report.