Can Michael Flynn Really Defy Congress and Get Away with It?

We asked an expert if the Russia investigation might be torpedoed by the former National Security Advisor just ignoring a subpoena from Congress.

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May 18 2017, 6:04pm

Michael Flynn. (Photo credit should read TIMOTHY A. CLARY/AFP/Getty Images)

It feels like a lifetime ago that Michael Flynn resigned as National Security Advisor. In administration where a scandal is now breaking on an almost daily basis, it's hard to recall something that happened as recently as February––even if it might ultimately define Donald Trump's presidency.

But Flynn remains among the most important players in the mushrooming scandal over whether the Trump campaign colluded with Russia during the 2016 election. Late Wednesday brought a deluge of less than flattering news about the former general—including his delaying an anti-ISIS operation opposed by Turkey after receiving cash apparently intended to encourage him to help its government. Then, on Thursday, the chair of the Senate Intelligence Committee, North Carolina Republican Richard Burr, said that Flynn would not complying with a subpoena for documents pertaining to the Russia mess.

An hour or two later, the Associated Press reported that Burr had corrected himself, and that actually, Flynn's lawyers just haven't responded yet.

To make sense of what it would mean for Flynn to simply go rogue and not play ball with Congress, I called up a law professor at the University of Baltimore named Charles Tiefer. In a past life, Tiefer worked in the Senate Legal Counsel's office and handled enforcement cases against organized crime figures, which is to say he's pretty familiar with the the procedures at hand. He said that what's happening right now is very unusual, though noncompliance might be the retired general's only move if he wants to avoid time behind bars.

"It signifies that the former high official expects prosecution," he told me of Flynn possibly not cooperating. "So it's as rare as felons in the Oval Office."

Here's a condensed and lightly edited version of what else we talked about.

VICE: So what would Flynn be thinking if he did ultimately refuse the subpoena?
Charles Tiefer: Flynn may be invoking his Fifth Amendment privilege. There was an earlier time some weeks ago when he said that he wanted an immunity deal with the Senate committee, and that often signifies fear of self-incrimination.

Can you game out what's next if Flynn does refuse? Does the Senate Intelligence Committee have the ability to issue a contempt citation like a judge would?
It's not clear whether a court will enforce a subpoena against someone with a well-founded fear of prosecution. And Flynn seems to be one of the main targets of the special counsel. He may be left alone with his looming prosecution problems rather than face subpoena enforcement from the Senate.

Now the Senate Intelligence Committee has two choices [if Flynn refuses to cooperate]. They can say they've done as much as is possible with a witness under criminal investigation and facing prosecution and turn to other witnesses. Or the Senate can direct the Senate legal counsel to go to court and seek a court order compelling him to provide his documents. But the Senate is unlikely to do that if his Fifth Amendment claim is valid.

If this goes to court, would Flynn also get the opportunity to argue the subpoena is unwarranted?
I don't see any defense for him other than the Fifth Amendment. He would make that argument to the committee, and then if the claim is valid, the committee will not pursue him. This subpoena didn't seek his testimony, it sought his documents. And an individual's documents are not cloaked with a Fifth Amendment privilege. But the Supreme Court has said that requiring an individual to produce his own documents does have a Fifth Amendment protection because of what's called the act of production violates his privilege against self-incrimination. So if he shared his documents with someone else, you could subpoena his documents from that person without there being a Fifth Amendment privilege.

OK, so maybe we can get the documents from someone else. But would a refusal to provide docs suggest Flynn won't ever testify himself?
Oh, yes. The committee can require him to show up and take the Fifth Amendment, and indeed congressional committees have done that with officials like Lois Lerner of the IRS in recent years. But committees have also accepted lawyers saying their clients would take the Fifth and not even call them in. In any event, you don't get any information from such a witness.

So Flynn refusing to cooperate might actually not be a crazy move for him?
There could have always been negotiations with him had he been willing to cooperate. For example, say he's only concerned about criminal investigation about his payments from Turkey. He could have negotiated an arrangement with the Senate Intelligence Committee in which he gave them whatever documents they had like his personal calendar relating to the Russian matter but not the Turkish matter.

It was worth trying to see whether he had any willingness to cooperate at all. The answer [may ultimately be] no, which would also change how the Congress and the public visualize him. He'd look a lot less like someone caught up in an investigation, and more like a criminal defendant.

Follow Allie Conti on Twitter.

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