This article has been updated.
Former national security adviser Michael Flynn’s reticence to testify before Congress about his behavior before and after the inauguration of Donald Trump was always obvious. His attorney indicated that Flynn would testify in exchange for immunity back in March — a ploy that seemed designed to muck up any external criminal investigation of Flynn. Such an investigation has since been reported, with subpoenas issued by the U.S. attorney’s office in Northern Virginia for records related to Flynn’s business.
On Monday, the Associated Press reported that Flynn would not comply with a similar subpoena issued by the Senate, prompting an obvious question: Is he allowed to ignore that request?
The answer is yes, in the sense that you can also refuse to comply with an order from a police officer. That is, he can refuse — but there will likely be consequences.
Todd Bussert, a federal criminal defense attorney in Connecticut, spoke with The Post by phone Monday to explain what might happen in response to Flynn’s refusal to turn over the requested documents.
The Fifth Amendment “doesn’t have the same level of protection” when it comes to documents, Bussert said.
“Congressional action is analogous to what you see in a criminal context,” Bussert said. “What you often see is the U.S. attorney’s office or law enforcement agencies working with the U.S. attorney’s office coming in and gathering documents from a company or an individual. They may have valid Fifth Amendment claims — they couldn’t be compelled to speak to agents or what have you — but they can’t refuse to comply with the subpoena for documents. You have to produce those — even though those may be incriminating.”
Put another way, the Fifth Amendment protects you from making incriminatory comments about yourself — but it doesn’t protect you from things you’ve said in the past. Documents are similarly a form of past behavior to which the Fifth Amendment doesn’t apply.
That said, there is a Fifth Amendment protection that comes into play. Eric Delinsky, partner at the Washington-based firm Zuckerman Spaeder, explained that there is a concept known as the “act of production” doctrine.
“If the act of producing documents in response to a subpoena or other order would incriminate or exculpate an individual then that person can invoke the Fifth Amendment privilege and decline to produce the material,” he said when we spoke by phone. Delinsky cited the case of United States v. Webster Hubbell, in which Hubbell’s attorneys argued that the request to dig through a large cache of documents to pick out ones specific to a subpoena itself was a “testimonial act.”
The risk to Flynn is that the Senate committee demanding the documents could vote to hold him in contempt. If they were to do so, the full Senate would be asked to weigh in on the matter and, if the Senate agreed to hold Flynn in contempt, the matter would be referred to the U.S. attorney’s office in Washington for criminal charges. In other words, Flynn could end up being convicted of a crime for withholding the documents and face prison time — regardless of what the documents say.
Granted, that demands the political will of a Republican-controlled Senate and, ultimately, on the willingness of the U.S. attorney’s office — a branch of Donald Trump’s Department of Justice — to press charges.
As Bussert notes, there’s good reason for the Senate to draw a hard line.
“Congressional interest in terms of pursuing contempt probably is influenced by the amount of public attention the matter is getting,” he said. “If there’s a lot of attention given to a particular matter, they don’t necessarily want to send the message that they’re willing to let somebody flout the subpoena.”
A well-timed report from the Congressional Research Service, released this month, outlines how and where congressional investigatory authority is bounded. The short version is that Congress’s authority is sweeping, with two centuries of application leading to a number of systems that can ensure Flynn-like situations are resolved to Congress’s benefit.
Since the Senate gained the power to seek civil enforcement for the failure to respond to a subpoena in 1979, they have exercised that power six times — never against an executive branch official. (Most recently, the CRS reports, the Senate held the chief executive of Backpage.com in contempt for not providing requested documents.)
Delinsky noted that the act of production doctrine is invoked regularly by attorneys in defense of their clients. Normally, a court wouldn’t find someone in contempt for refusing to turn over documents on those grounds without a court first deciding whether or not the invocation of the claim was valid. But the Congress isn’t a regular courtroom. When IRS official Lois Lerner invoked her right against self-incrimination in 2014, the Republican House voted to hold her in contempt. The Department of Justice, then under Barack Obama’s leadership, declined to press charges.
On the scale of the questions about Flynn — did he improperly lobby on behalf of Turkey? Did he have inappropriate conversations with the Russians during the 2016 campaign? — a Senate contempt charge is fairly low. Assuming that Flynn’s team does refuse to comply with this subpoena, then, they may be making a strategic decision: That the long-shot risk of going to jail for contempt is lower than the risk involved if the Senate actually sees those documents.
Update: This article was updated with information about the act of production doctrine and the politics of bringing charges to bear.