Flynn’s Fifth

Michael Flynn’s lawyer, Robert Kelner, responded to the Senate Intelligence Committee’s subpoena in the only rational and responsible way: he invoked Flynn’s rights under the Fifth Amendment.

Mr. Flynn had been ordered by the Senate Intelligence Committee to hand over emails and other records related to any dealings with Russians as part of that panel’s investigation into Russian meddling in the 2016 election. His decision to invoke his Fifth Amendment right puts him at risk of being held in contempt of Congress, which can also result in a criminal charge.

In a letter to the heads of the Intelligence Committee, Mr. Flynn’s lawyers said that the accusations against him, as well as the appointment of a special counsel to oversee the Justice Department investigation into Russian election interference, gave him “reasonable cause to apprehend danger” should he comply with the subpoena.

The outrage was palpable, as people wanted desperately for Flynn to spill his guts and implicate Trump in something nefarious. How dare he “hide” behind the Fifth!

“He is the target on a nearly daily basis of outrageous allegations, often attributed to anonymous sources in Congress or elsewhere in the United States government, which, however fanciful on their face and unsubstantiated by evidence, feed the escalating public frenzy against him,” his lawyers wrote.

If you can’t trust anonymous sources, whom can you trust? But this invocation of rights naturally brought every twitter lawyer out of hiding and turned journalists everywhere into immediate 5th Amendment scholars, explaining why this was horribly wrong and how it could be abused. One of the early adopters, Jake Tapper, jumped into the fray.

Certainly, people will assume the obvious, why invoke the Fifth if you have nothing to hide? And Tapper not only went there, but chose to argue its merit.

One has the legal right to not self-incriminate. Being able to ask the political question about why one is doing so is also a right.

From the progressive “everything we want to be a right is a right” perspective, perhaps, but then the point of the Fifth Amendment is fatally undermined. It provides, in pertinent part:

No person . . . shall be compelled in any criminal case to be a witness against himself.

Flynn is, without question, in a position of criminal culpability.* He is subject to prosecution for what he did, and what he might say (or not say) before the Senate committee. He’s got problems all around. There was nothing surprising or nefarious about Kelner invoking the Fifth. Any competent lawyer would have done the same. Any lawyer who didn’t would have been astoundingly ineffective.

Nor is the exercise of this constitutional right proof of wrongdoing. As Ken White pointed out (and Jameel Jaffer twitted), there are some really good reasons why a totally innocent person invokes their rights.

You take the Fifth because the government can’t be trusted. You take the Fifth because what the truth is, and what the government thinks the truth is, are two very different things. You take the Fifth because even if you didn’t do anything wrong your statements can be used as building blocks in dishonest, or malicious, or politically motivated prosecutions against you. You take the Fifth because if you answer questions truthfully the government may still decide you are lying and prosecute you for lying.

While Ken provides the much needed explanation, because people refuse to accept the premise that anyone would exercise their constitutional rights just because they can, or just because they have no duty to put on the dog and pony show before the Senate Intelligence Committee that they really want to watch, it’s problematic that this needs to be explained.

The fact that people refuse to accept, no less embrace, the premise that the value of a right is nullified if its exercise gives way to the very inference it exists to prevent is the problem.

But what about the fact that people really, really want to hear Flynn’s answers to questions, to see the documents he’s been told to produce, to have him nail Darth Cheeto to the wall. What about, as Tapper asks, the Senate Committee’s “right” to ask Flynn why he’s invoking his constitutional rights, what he has to hide?

This is where the rubber meets the road. If the Committee can legitimately impugn Flynn for the exercise of his constitutional rights, then the same can be done of anyone, the same can be done of you. Then there is no benefit to having constitutional rights if their use produces the same results as if they didn’t exist in the first place.

The invocation of Flynn’s Fifth Amendment rights doesn’t make him innocent. But it doesn’t make him guilty either. It makes him an American. That all that really matters when constitutional rights are invoked, that we have them. We should appreciate the existence of constitutional rights rather than seek ways to circumvent them.

*As civil lawyers rush to remind us, this doesn’t apply to civil actions, to insulate a litigant from the adverse inference of liability for the invocation of the Fifth Amendment. Notably, it says so in the text, which specifically states that it applies only to criminal cases.

15 thoughts on “Flynn’s Fifth

  1. Rick

    Isn’t a “win” in the court of human opinion just as good as a legal ‘win?” Most of us are too stupid to know the difference.

        1. SHG Post author

          Excellent point. No matter what wrong you’ve done, getting fired by Trump makes you a beloved saint.

  2. Stephanie

    Part of the outrage seems to stem from this same man stating last year that immunity “means that you probably committed a crime.”

    Oh yeah, and people are stupid about asserting your Constitutional rights really means.

    1. SHG Post author

      While the hypocrisy is flagrant, it’s not the source of outrage, but another convenient weapon used to justify it. And everybody involved is up to their eyeballs in hypocrisy. We don’t respect constitutional rights for other people’s sake, but for its own sake, and our own.

  3. bacchys

    I agree with you, but Flynn doesn’t. He thinks anyone who needs immunity is probably guilty of a crime…

  4. Allen

    I have little sympathy for Gen. Flynn. The safest course for him is shut up, and let his attorney speak for him from here on out. This is a classic case of bootstrapping, if they have anything on him, they already have all the ammunition they need. The charge of perjury for lying on the security questionnaire, is a minor one.

    I’m curious about if the Times appreciates that they are an intimate partner to the bootstrapping. They might consider getting a longer spoon.

  5. Frank

    While I agree with the thrust of your article, it has always been my understanding that document production was not considered testimony and therefore is not covered by the Fifth Amendment. It’s been a while since evidence class, but I thought documents were treated like fingerprints or DNA, in that they can be compelled even when they are used to prove guilt.

    1. SHG Post author

      The “act of production” is a testimonial privilege. Perhaps you should ask for a refund?

      Whether it would apply under the facts presented here, however, I can’t say. Nor, frankly, do I necessarily care. This isn’t about Flynn.

  6. Frank Miceli

    Well, not to gush– I know it’s frowned upon by the hardy race of defense lawyer warriors–but this and posts like it is why I read this blog. Superb!

  7. Matthew S Wideman

    The tyranny of good intentions at work! We all want to know what happened… let’s bring down a pillar of our democracy. As I read the Sean Spencer Twit….. I thought how silly it was for a reporter to justify a stupid idea with a quote from an equally stupid person!

    Hey we should all hate people with purple hair…. because Hitler hated another group of people with a physical characteristic! Sounds like a great idea.

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