Imply guilt

Michael Flynn Is Taking the Fifth. So What?

Asserting your constitutional rights doesn’t imply guilt. But Congress has been making it seem that way for years.

By ANDY WRIGHT

So Michael Flynn, Donald Trump’s former national security adviser, is asserting his Fifth Amendment rights. He is refusing to comply with the Senate Intelligence Committee’s subpoena for documents related to its investigation of Russian interference in the 2016 election. The mere act of producing the documents, Flynn said through a lawyer, would violate his constitutional protection against self-incrimination—as would testimony, he suggested.

Flynn’s assertion has infuriated the Republican chairman Richard Burr of North Carolina, who has threatened to hold Flynn in contempt of Congress if he continues to stonewall the committee.

Hearing testimony and news accounts suggest Flynn has plenty of cause for concern, including his unregistered representation of entities associated with ties to Turkey, his discussions with Russia’s ambassador about President Barack Obama’s imposition of sanctions, his acceptance of payments from Russian media outlet RT, and his apparent lack of candor with White House colleagues, law enforcement and the American people. However, his invocation of the Fifth Amendment should not be one of them.

Unfortunately, Congress has terrible track record of safeguarding the Fifth Amendment privilege against self-incrimination. Too many members of Congress, from both parties, have treated invocation of the Fifth Amendment as evidence of illegal conduct. In investigations ranging from the collapse Enron to botched gun trafficking investigations to Internal Revenue Service (IRS) treatment of conservative groups, witnesses have been subjected to public innuendo and accusations of criminality after signaling their intent to assert the Fifth.

That’s not how the self-incrimination clause of the Constitution is supposed to work. The Fifth Amendment privilege is not solely for the benefit of the guilty. The Supreme Court has described its basic function “to protect innocent men … who otherwise might be ensnared by ambiguous circumstances.” In criminal cases, invoking the privilege doesn’t imply guilt. And to protect the Fifth Amendment for everyone, Congress shouldn’t view it that way either.

Some legislators have sought aggressively to undermine the privilege. During the Red Scare, Sen. Joseph McCarthy (R-Wisc.), asked witnesses if they had spied for the Soviets, and once they answered “no,” he would declare that the witness had waived his Fifth Amendment rights with respect to any question related to espionage. More recently, Rep. Darrell Issa (R-Calif.), found IRS official Lois Lerner had waived the Fifth Amendment by declaring her innocence at the outset of a hearing. Issa’s legal ruling as chair later served as the basis for the House citing Lerner for contempt of Congress.

In a criminal trial, it is improper for a prosecutor to ask a question designed to elicit a claim of privilege under the self-incrimination clause, and continuing to interrogate a witness after she refuses to testify on Fifth Amendment grounds could amount to prosecutorial misconduct.

Congress is different. The congressional record is rife with examples of requiring witnesses to repeatedly assert the Fifth Amendment in in the public glare. Rep. Dan Burton (R-Ind.) required a member of President Bill Clinton’s White House staff to appear at a public hearing and assert the Fifth Amendment 38 times. Rep. John Dingell (D-Mich.) required disgraced junk bond financier Michael Milken to repeatedly assert the Fifth Amendment after Milken had provided the committee a sworn affidavit in advance. The lawmakers’ clear goal in each case was to embarrass the witnesses and make them appear guilty.

Earlier congressional abuses prompted the D.C. Bar in 1977 to declare it a violation of the Code of Professional Responsibility for a congressional staff lawyer to require a witness to appear before a congressional committee when the committee had been informed that the witness would invoke the privilege against self-incrimination in response to all substantive questions. “[T]he sole effect of the summons [would] be to pillory the witness,” the Bar said.

Flynn possesses tons of information critical to this investigation, both as a matter of his conduct and his interactions with other White House officials. He can definitively answer whether he called the Russian ambassador to undermine President Obama on his own accord or did so under orders from President-Elect Trump. In the words of his lawyer, Flynn “certainly has a story to tell.”

But there are other ways to obtain this information. For starters, the committee has now issued subpoenas to the two corporate entities under Flynn’s sole control. Businesses do not have the right to plead the Fifth as to documents and records. Second, further information could convince Congress, in consultation with Special Counsel Robert Mueller, that it is worth prosecution risks to grant Flynn immunity. Third, if Flynn is convicted of a crime, the judge could use sentencing as leverage to persuade him to testify before the Senate. That is exactly what Judge John Sirica did to the Watergate convicts: He delayed sentencing and said he would take into account their subsequent cooperation with the congressional investigators.

So far, the committee appears to be responding to Flynn appropriately. Vice Chairman Mark Warner (D-Va.) bears a special responsibility to judiciously defend the Fifth Amendment. Without steadfast support by Warner, attempts by Chairman Burr to safeguard the Fifth Amendment in Flynn’s case will be vulnerable to attack as sandbagging.

Political theater is to be expected in Congress, and its hearings do not adjudicate rights. But the self-incrimination clause applies to Congress and should be given its full effect. During the presidential campaign, Flynn did not offer the same defense of constitutional values to Secretary Hillary Clinton’s aides who asserted the privilege in the investigation of her email practices—he said it implied they were guilty. But Flynn was wrong as it related to Clinton, and it would be wrong to use the Fifth Amendment as evidence of his guilt now.