It seems that the Senate Intelligence Committee couldn’t cut a deal with Michael Flynn after all. The Associated Press reports this morning that the former national security adviser will refuse to provide any testimony, and will invoke the Fifth Amendment instead:
BREAKING: AP Source: Michael Flynn to decline Senate Intel committee subpoena, invoke 5th Amendment later today.
— The Associated Press (@AP) May 22, 2017
Last week, the AP ended up with some egg on its face when it relied on Senate Intel chair Richard Burr’s contention that Flynn had decided to “defy” a subpoena. It turned out that Flynn’s attorneys had not actually responded to the subpoena at the time, forcing everyone into a retreat from the story. As I noted at the time, Flynn had demanded immunity at the end of March in exchange for this testimony, a demand which Trump endorsed at the time. Burr rejected the offer almost immediately, with sources telling NBC that such a request was “wildly preliminary” at that stage.
It appears now that those positions became set in stone, with neither side budging. Flynn’s not going to do an Oliver North impression, mostly because it won’t work and Flynn has too much exposure on other issues. At the same time, Flynn’s not going to open himself up to a contempt charge, as Burr suggested last week. The obvious legal strategy is also a common one — taking the Fifth Amendment and telling the Senate committee to pound sand.
Whether one cheers or castigates Flynn for this will depend in large part on one’s perspective. Conservatives reamed Lois Lerner for doing the same thing in the IRS scandal … including Sean Spicer at the time:
why do u take the 5th if you have done nothing wrong and have nothing to hide? #IRS
— Sean Spicer (@seanspicer) May 22, 2013
Ahem. In that case, though, the Inspector General at Treasury had acknowledged a larger offense at the IRS, whereas no one actually has found a crime (yet) in the allegations of Russian interference in the election. The only demonstrable legal risk here (so far) is to Flynn himself on allegations that he failed to properly register as a foreign agent and to disclose money he took from state-run RT for a speech in Moscow. In fact, this suggests that Flynn doesn’t have anything to trade to escape punishment for those allegations — and that there’s not much point in cooperating as a result. That may well be why the Senate Intelligence Committee refused to arrange an immunity deal for Flynn, because they have nothing to gain from it either.
Basically, Flynn will avoid testifying and a charge of contempt by exercising his constitutional rights. Whether that’s the right call, or the safe call, will not be fully known until the end of this investigation. The next hurdle for Flynn will almost certainly be Robert Mueller’s special-counsel probe, and that’s when we’ll know whether Flynn and his attorneys really are horse trading, or whether there’s anything at all to trade.
Update: Another prominent figure noted another prominent exercise of the use of the Fifth Amendment in a scandal probe last year (via Jeryl Bier):
It’s all a matter of perspective, eh?