The Senate Intelligence Committee is issuing two new subpoenas for information from former national security adviser and retired Lt. Gen. Michael Flynn’s companies and challenging his lawyer’s refusal to comply with an existing subpoena for documents detailing his contacts with Russian officials, committee leaders announced Tuesday.
“A business does not have the right to take the Fifth,” Sen. Mark R. Warner (D-Va.), the committee’s lead Democrat, told reporters as he and chairman Richard Burr (R-N.C.) pledged to “keep all options on the table.”
Burr and Warner announced they would subpoena documents from the two Flynn businesses they were aware of — Flynn Intel LLC and Flynn Intel Inc., both based in Alexandria, Va.
They are also sending a letter to Flynn’s lawyers challenging them on “whether Flynn can take the Fifth as it relates to document production,” and itemizing more specifically what documents they want Flynn to furnish.
The moves stop short of seeking a citation of contempt against Flynn for failing to comply with the committee’s subpoena — for now.
“We’ve taken actions that we feel are appropriate right now,” Burr said. “If in fact there’s not a response, we’ll seek additional counsel on how to proceed . . . at the end of that option, there’s a contempt charge.”
Tuesday’s moves come after Flynn’s lawyers told Intelligence leaders in a letter Monday that Flynn would invoke his right against self-incrimination because the documents the committee was requesting were “testimonial” in nature. They argued the request for records of calls between June 16, 2015, and Jan. 20, 2017, was especially broad. Flynn’s lawyers also said Flynn had “more than a reasonable apprehension that any testimony he provides could be used against him.”
Committee leaders were frustrated with that response and changed the request in a seeming attempt to call Flynn’s lawyers’ bluff.
“We’ve been very specific in the documents now that we have requested from General Flynn,” Burr said.
Warner and Burr initially responded to the letter from Flynn’s lawyers Monday by pledging to “vigorously pursue General Flynn’s testimony and his production of any and all materials pursuant to the Committee’s authorities.”
Flynn’s testimony is not the only testimony they are seeking.
Warner also said Director of National Intelligence Daniel Coats and National Security Agency Director Michael S. Rogers “owe the committee some explanation” about the conversations they had with President Trump in which, as The Washington Post reported, he asked them to pressure then-FBI Director James B. Comey to drop his investigation into alleged links between Trump’s campaign and transition teams and Kremlin officials.
“We did ask all of these nominees that, as we move forward with the Russia investigation, that they would fully cooperate,” Warner said. “If we have the president trying to interfere and ask ODNI Director Coats and Admiral Rogers to back off the Russia investigation, that seems clearly a subject that Rogers and Coats would then owe the committee some explanation.”
Warner added that he expected Comey would testify publicly before the Intelligence Committee sometime during the week after Congress’s week-long Memorial Day recess.
But the more urgent matter at hand is what to do about Flynn.
Committee members met behind closed doors Tuesday afternoon and discussed their options. But not all members see eye to eye.
While Warner and Burr have indicated that holding Flynn in contempt is an option that remains on the table, others are not so sure.
“He has the right to use his Fifth Amendment rights,” said Sen. Dianne Feinstein (D-Calif.), a committee member.
Sen. Susan Collins (R-Maine), another panel member, said that if Flynn “had just refused to turn over documents without invoking his constitutional rights, then my approach would be to explore a contempt-of-Congress citation.” But, she added, “I’m very respectful of their privilege not to incriminate themselves, and so I think we have to proceed carefully.”
While plenty of witnesses invoke the Fifth Amendment to avoid giving testimony, some senators and legal experts are skeptical that the Fifth Amendment can be applied to a request for documents.
It is also unclear how much the recent appointment of Robert S. Mueller III as special counsel will affect the committee’s ability to compel Flynn’s testimony and production of documents. Flynn’s attorneys cited Mueller’s appointment as a reason against complying with the subpoena, concluding in a letter to Burr and Warner that it raised the chances Flynn’s testimony could be used against him, “giving rise to a constitutional right not to testify.”
Regardless, committee members seem to be aware that if they want to procure information from Flynn, they are in for a fight.
“I think he will fight things tooth and nail,” said Sen. Martin Heinrich (D-N.M.). “And that probably is indicative of the level of trouble that he’s in.”
Ed O’Keefe and Matea Gold contributed to this report.