Archive for the ‘Fifth Amendment’ Category

Understanding Michael Flynn’s Fifth Amendment case – Constitution Daily (blog)

Former national security adviser Michael Flynn seemingly wont comply with congressional subpoenas to produce records related to a Senate investigation. Whats the constitutional basis for this controversy and can the Senate hold Flynn in contempt?

On Monday, Flynns lawyers said he wouldnt act on a subpoena from the Senate Intelligence Committee, which asked the retired Lieutenant General to supply a list of contacts he had with any Russian officials between June 16, 2015, and Jan. 20, 2017. Flynn was one of four people involved with President Donald Trumps campaign compelled to produce records by the committee.

Then on Tuesday, the Senate issued two new subpoenas to Flynn related to consulting businesses run by Flynn before he became national security adviser. Committee chairman Richard Burr of North Carolina said the committee sought "very specific"information in Flynns business records.The Senate wants Flynns testimony and documents related to its investigation of possible Russian interference in the 2016 general election.

Flynns legal team believes the act of producing the records will have the same effect as live testimony by Flynn about events that could potentially incriminate him. "Producing documents that fall within the subpoena's broad scope would be a testimonial act, insofar as it would confirm or deny the existence of such documents, they said on Monday. The attorneys also claimed that Robert Muellers appointment to lead a Justice Department investigation on similar grounds was another reason for Flynn to consider his constitutional right not to testify.

At the heart of the controversy are 13 words that make up part of the Fifth Amendment, which state that no person shall be compelled in any criminal case to be a witness against himself.

The broad powers of the Constitutions Article I have long been seen as allowing a body like the Senate to conduct such investigations. The specific congressional power to issue subpoenas was defined in the 1920s in the wake of the Teapot Dome scandal. In McGrain v. Daugherty (1927), the Supreme Court said that, Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain that which is needed. The Supreme Court in 1927 also cited examples where contempt powers for people who didnt honor subpoenas dated back to the British parliament and colonial legislatures that existed before the Constitution was ratified.

Over the years, the Supreme Court has ruled that the Fifth Amendment privilege against self-incrimination applies to people testifying before Congress as part of an investigation, and in some cases, requests for records could fall into that protected category. These precedents would allow a person in appearing before Congress to take the Fifth in front of investigators and committee members, as well as to claim that producing documents isprotected by the Fifth Amendment.

In general terms, Constitution Daily Supreme Court correspondent Lyle Denniston explained these limitations in an article we published in 2014 about a Fifth Amendment claim in the New Jersey Bridgegate cases.

What is most complicated about pleading the Fifth is claiming that protection to head off a demand for records.It is by no means clear that, if records are not really the personal papers of a specific individual, that the individual can claim the privilege for those papers, even if their revelation would be incriminating. Again, the privilege is a personal one, not one that goes with ones position, Denniston explained.

If prosecutors or investigators identify on their own a specific set of papers, or a kind of document, and they can show that it is not personal to the individual who possesses it, the likelihood is that the Fifth Amendment protection would not apply.But prosecutors or investigators cannot go on what is called a fishing expedition, by requiring an individual who is targeted by their investigation to identify the papers that would respond to what the investigations goal is, Denniston added. The Supreme Court has ruled explicitly that an individual can claim the Fifth against a demand that he or she find the responsive papers, identify them, and then hand them over.That is called, technically, the act of production and it is protected from compulsion.

A recent Congressional Research Service report, just issued two weeks ago, cites several examples where the Supreme Court has considered the issue of producing documents under subpoena. The privilege protects a witness against being compelled to testify but generally not against a subpoena for existing documentary evidence. However, where compliance with a subpoena duces tecum would constitute implicit testimonial authentication of the documents produced, the privilege may apply, the CRS says. (A subpoena duces tecum is a request for a witness to produce documents in court or at a hearing.)

The CRS cites several cases where the production of business records was at issue, and Flynns attorneys named a more-recent Supreme Court decision in their letter to Senate investigators, United States v. Hubbell. In an 8-1 decision, Justice John Paul Stevens in his majority decision tackled one of two questions related to Webster Hubbells involvement in the Whitewater controversy: Whether the Fifth Amendment privilege protects a witness from being compelled to disclose the existence of incriminating documents that the government is unable to describe with reasonable particularity.

It was unquestionably necessary for respondent to make extensive use of the contents of his own mind in identifying the hundreds of documents responsive to the requests in the subpoena, Stevens said back in 2000. The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.

In sum, we have no doubt that the constitutional privilege against self-incrimination protects the target of a grand jury investigation from being compelled to answer questions designed to elicit information about the existence of sources of potentially incriminating evidence. That constitutional privilege has the same application to the testimonial aspect of a response to a subpoena seeking discovery of those sources, Stevens concluded.

For now, the Senate is awaiting comment from Flynns attorneys. But in past cases where the Senate has sought contempt charges, the process has been slow and not always successful.

In one scenario, Flynn also could be charged under a criminal contempt statute, which would send the matter to the executive branch for criminal prosecution. That would put the ball in the court of Attorney General Jeff Sessions to consider contempt of Congress charges. The Senate also can rely on the judicial branch to enforce a congressional subpoena under a civil judgment from a federal court. If Flynn didnt comply, he could face contempt of court charges and not contempt of Congress charges.

As for Flynn or anyone facing jail time if found in contempt of Congress, the last person to receive a prison sentence in a related case was Rita Lavelle in 1983. The former EPA official won her contempt case in court, but she was found guilty on a perjury charge and served a short sentence.

According to CRS, at least six people have faced contempt charges made by the Senate in civil court since 1979, but the Senate hasn't used that power in the case of an executive branch official who refused to comply with a subpoena.

Scott Bomboy is the editor in chief of the National Constitution Center.

Filed Under: Fifth Amendment

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Understanding Michael Flynn's Fifth Amendment case - Constitution Daily (blog)

Michael Flynn Invokes Fifth Amendment While Subpoenas Stack Up – WhoWhatWhy / RealNewsProject (blog)

Michael Flynn testifies before the House Armed Services Sub-Committee on Intelligence, Emerging Threats, and CapabilitiesPhoto credit:DIA

Michael Flynn had what amounts to the shortest tenure of any national security adviser in US history. He had not held the position for even one full month before being forced to resign on Feb. 13, 2017, after it was revealed that he gave incomplete information on the extent of his contact with Sergei Kislyak, the Russian Ambassador to the United States.

On May 10, the Senate Intelligence Committee ordered a subpoena for documents relating to the ongoing Russia investigation. Flynn responded on May 22 by invoking his Fifth Amendment right against self-incrimination, but this hasnt stopped the subpoenas from piling up.

On Wednesday, the committee followed up by issuing subpoenas to Flynns Virginia-based businesses.

In 2015, Flynn received payments from a Kremlin-funded media outlet, RT (formerly Russia Today), through his company, Flynn Intel. What makes the most recent round of subpoenas more difficult for Flynn to evade is that businesses arent protected under the Fifth Amendment.

According to Rep. Adam Schiff (D-CA), the House Intelligence Committee is preparing subpoenas of its own.

Pleading the Fifth can only offer so much protection for Flynn, who unsuccessfully sought immunity in earlier months in exchange for his testimony. He now runs the risk of being held in contempt of court, though it is unclear if Congress wishes to pursue such action.

These videos provide an overview of recent events as well as a refresher on the history and purpose of the Fifth Amendment.

Related front page panorama photo credit: Adapted by WhoWhatWhy from Michael Flynn (DIA)

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Michael Flynn Invokes Fifth Amendment While Subpoenas Stack Up - WhoWhatWhy / RealNewsProject (blog)

Michael Flynn expected to invoke Fifth Amendment, source says – WSYR

Former national security adviser Michael Flynn Former national security adviser Michael Flynn Related Content

(CNN) - President Donald Trump's former national security adviser Michael Flynn won't provide records to the Senate intelligence committee and will invoke his Fifth Amendment rights in response to a subpoena from the committee, according to a source close to Flynn.

Flynn's refusal to cooperate comes as he faces scrutiny in several inquiries, including on Capitol Hill and a federal grand jury that has issued subpoenas to associates of the ex-national security adviser.

Flynn's refusal to cooperate will also intensify scrutiny over Trump's decision to hire him initially for the job and his decision to keep him on staff for 18 days after the President was warned by former acting Attorney General Sally Yates that Flynn may have been compromised by the Russians.

The Senate committee had asked Flynn earlier this month to produce all records over his communications with Russian officials by this Wednesday. But Flynn is expected to send a letter later Monday invoking his Fifth Amendment rights.

The source close to Flynn said it would be "highly imprudent for him not to exercise his Fifth Amendment rights" given that several members of Congress have called for his prosecution.

The Associated Press first reported Flynn's plans to invoke the Fifth Amendment.

Flynn's decision to decline the subpoena does not come as a surprise to Senate intelligence leaders, as Flynn's lawyer, Robert Kelner, also told the panel last month he would not provide documents in response to an April request.

Flynn was back in the news last week following the revelation that former FBI Director James Comey wrote in a memo that Trump had asked Comey in a meeting to end his investigation into the former national security adviser.

Flynn resigned from the Trump White House in February after it was revealed he'd misled White House officials over his conversations he had with Russian Ambassador Sergey Kislyak, which included communication about sanctions.

Flynn previously sought immunity from the Senate committee in exchange for his testimony. Leaders of both the Senate and House panels, which are conducting separate investigations into Russia's election-year meddling, rejected that request.

During the 2016 campaign, Trump blasted aides to Hillary Clinton for taking the Fifth Amendment in relation to the investigation of her use of a private email server while secretary of state. He said at a September Iowa rally: "So there are five people taking the Fifth Amendment, like you see on the mob, right? You see the mob takes the Fifth. If you're innocent, why are you taking the Fifth Amendment?"

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Michael Flynn expected to invoke Fifth Amendment, source says - WSYR

The Latest: Dems alarmed by report on Trump, intel bosses – Palm Beach Post

WASHINGTON

The Latest on ongoing investigations into Russia's alleged interference with the U.S. election (all times local):

Democrats are expressing alarm at a report alleging that President Donald Trump asked two top intelligence officials to publicly deny collusion between the Russians and the Trump campaign in the 2016 election.

Rep. Adam Schiff of California, the ranking Democrat on the House intelligence committee, says The Washington Post's report that Trump tried to enlist the head of the National Security Agency and the national intelligence director to push the White House narrative is a "disturbing allegation" that Trump is interfering with the FBI probe.

Schiff says the officials involved should testify before Congress and lawmakers must request any memos documenting the conversations.

Sen. Sheldon Whitehouse of Rhode Island, a member of the Senate Judiciary Committee, says the newspaper's report Monday is an indication that Trump is trying to impede the investigation.

House Oversight Committee Chairman Jason Chaffetz says he will postpone a hearing scheduled for Wednesday after speaking with former FBI Director James Comey.

Chaffetz said in a tweet Monday that Comey "wants to speak with Special Counsel (Robert Mueller) prior to public testimony."

Chaffetz, a Utah Republican, has requested that the FBI turn over all documents and recordings that detail communications between Comey and President Donald Trump.

Chaffetz says he wants to determine whether the president attempted to influence or impede the FBI's investigation into former National Security Adviser Michael Flynn.

Chaffetz had invited Comey to speak at Wednesday's hearing. The former FBI head has agreed to testify before the Senate intelligence committee after Memorial Day.

The top two members of the Senate intelligence committee say they will "vigorously pursue" the testimony of President Donald Trump's first national security adviser, even though Michael Flynn has invoked his Fifth Amendment right against self-incrimination.

Sens. Richard Burr of North Carolina and Mark Warner of Virginia say they are disappointed that Flynn has decided to ignore the committee's subpoena. Earlier this month, the committee asked Flynn and other Trump associates for lists of meetings and notes taken during the presidential campaign.

The Senate intelligence committee is among the congressional panels investigating Russia's election meddling and possible ties with the Trump campaign. The FBI is also investigating.

The top Democrat on a House oversight committee says documents he's reviewed suggest that former National Security Adviser Michael Flynn lied to federal security clearance investigators about the source of payments Flynn received from a Russian state-sponsored television network.

Rep. Elijah Cummings of Maryland says Flynn told the investigators during an early 2016 security clearance review that a trip to Moscow was "funded by U.S. companies." Cummings says the actual source of the funds was "the Russian media propaganda arm, RT."

Cummings made the statements in a letter to Rep. Jason Chaffetz, the Utah Republican and chairman of the House oversight committee. Cummings' letter came the same day Flynn declined to provide documents to the Senate Intelligence Committee, citing his Fifth Amendment protection from self-incrimination.

Attorneys for Michael Flynn say that a daily "escalating public frenzy against him" and the Justice Department's appointment of a special counsel have created a legally dangerous environment for him to cooperate with a Senate investigation.

That's according to a letter obtained by The Associated Press that was written on behalf of the former national security adviser under President Donald Trump. The letter, sent Monday by Flynn's legal team to the Senate Intelligence committee, lays out the case for Flynn to invoke his Fifth Amendment protection against self-incrimination and his decision not to produce documents in response to a congressional subpoena.

The letter says that the current context of the Senate's investigation into Russia's meddling in the 2016 election threatens that "any testimony he provides could be used against him."

A Republican member of the Senate Intelligence Committee says "we will get to the truth one way or another" even though former National Security Adviser Michael Flynn is citing Fifth Amendment protections in the panel's investigation into Russia.

Sen. James Lankford tweeted that it is Flynn's right to invoke his constitutional right against self-incrimination as part of the probe into interference in the 2016 elections.

The Oklahoma lawmaker tweeted: "We need facts, not speculation & anonymous sources."

Democratic Sen. Dianne Feinstein said Flynn's move was "unfortunate but not unexpected" and the committee would gain information in other ways.

A person with direct knowledge of the matter says Flynn is citing Fifth Amendment protections. The person spoke on condition of anonymity because they weren't authorized to publicly discuss private interactions.

Former National Security Adviser Michael Flynn will invoke his Fifth Amendment protection against self-incrimination on Monday as he notifies the Senate Intelligence committee that he will not comply with a subpoena seeking documents.

That's according to a person with direct knowledge of the matter. The person spoke on condition of anonymity to discuss the private interactions between Flynn and the committee.

Flynn's decision comes less than two weeks after the committee issued a subpoena for Flynn's documents as part of the panel's investigation into Russia's meddling in the 2016 election.

Legal experts have said Flynn was unlikely to turn over the personal documents without immunity because he would be waiving some of his constitutional protections by doing so. Flynn has previously sought immunity from "unfair prosecution" to cooperate with the committee.

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The Latest: Dems alarmed by report on Trump, intel bosses - Palm Beach Post

A Look at Fifth Amendment Protections Invoked by Flynn – NBC Connecticut

WATCH LIVE

The Fifth Amendment right against self-incrimination being invoked by President Donald Trump's former national security adviser, Michael Flynn, is a bedrock legal principle. It's enshrined in the Constitution's Bill of Rights and relied on by witnesses before Congress and the courts alike.

A look at those protections and elements of the Flynn case:

NO SELF-INCRIMINATION

The amendment provides numerous legal protections for defendants, including the right to have evidence presented to a grand jury. But the best-known provision is one that shields a witness from self-incrimination. Witnesses have invoked it in order to avoid testifying against themselves, or to avoid being forced to produce documents that could be used against them.

NOT AN ADMISSION OF GUILT

Invoking the Fifth Amendment does not mean that a witness is guilty of any crime or even has anything to hide. Instead, it can reflect a witness's concern that any testimony given would be interpreted in an unfavorable way, or that it could be used as evidence in a prosecution. Ironically, both Flynn and Trump pointed to invoking the Fifth Amendment as a sign of guilt during the Hillary Clinton email investigation.

IN FLYNN'S CASE

Flynn is refusing to provide documents to a Senate committee investigating Russian interference in the 2016 presidential election. A subpoena from the Senate intelligence committee requests a list of all contacts between Flynn and Russian officials over an 18-month period. In a letter to the committee Monday, lawyers for Flynn say that he is not admitting wrongdoing but is looking to protect himself from an "escalating public frenzy" of "outrageous allegations."

A PROBLEM FOR INVESTIGATORS

The committee's investigation could be hampered by Flynn's decision to invoke the Fifth Amendment, but lawmakers could try to get some documents on their own or get information they want from another witness. The committee also could file a claim in federal court to try to force Flynn to testify and produce documents, but that could take months.

WHAT ABOUT IMMUNITY?

The committee could offer Flynn immunity in exchange for his testimony, but that could complicate any subsequent Justice Department criminal prosecution. The FBI would not be able to use the immunized testimony, or evidence derived from it, to build a case, though a witness can still be prosecuted for false statements or for evidence of other crimes. The committee would have to alert the attorney general before making such an offer.

Associated Press writer Deb Riechmann contributed to this report.

Published at 3:37 PM EDT on May 22, 2017 | Updated at 4:09 PM EDT on May 22, 2017

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A Look at Fifth Amendment Protections Invoked by Flynn - NBC Connecticut