Michael Flynn is pleading the 5th. So what does that mean?
President Trump's former national security adviser Michael Flynn told the Senate Intelligence Committee Monday that he won't turn over documents related to the committee's investigation of possible collusion between the Trump campaign and the Russian government's efforts to sway the 2016 election.
In refusing to honor the Senate committee's subpoena, Flynn invoked the Fifth Amendment, also known as taking the Fifth or pleading the Fifth, to justify his refusal to turn over records of his meetings with Russian officials.
So, what exactly is the 5th Amendment?
The 5th Amendment of the U.S. Constitution is part of the Bill of Rights. It covers a lot of ground, guaranteeing citizens a number of legal protections, including the right to have evidence presented to a grand jury and the right against "double jeopardy," or being prosecuted twice for the same crime. In Flynn's case, he invoked the Amendment's protection against anyone being "compelled in any criminal case to be a witness against himself." This is commonly referred to as the right against self-incrimination.
Does the 5th Amendment apply to documents?
Yes. You don't have to give verbal testimony to be a witness against yourself. For example, the government can't compel you to turn in any marijuana plants you have growing in your home because the very admission those plants exist would be incriminating. Of course, the government could find those plants through a legally executed search, but they couldn't force you to turn them over yourself.
Even if the documents themselves are not incriminating, if those documents could lead to further evidence of your guilt, that would be enough to make the Fifth Amendment apply, explained Georgetown Law Professor Julie O'Sullivan. They just have to supply "a link in the chain of evidence needed to convict you."
"His act of producing these records is compelled," she said. And it would be considered testimonial because it would be an admission that he had contact with the Russians. That could be incriminating because he would be giving the committee details that potentially admitting could "lead them to other information, or other witnesses or other people who could further incriminate him," O'Sullivan said.
But this is the Senate, not a criminal court
Even though the Senate Intelligence Committee investigaton is not technically a criminal proceeding, the Fifth Amendment still applies.
"You can't be compelled in any context in which the evidence, if produced, could eventually be used against you in a criminal case," O'Sullivan said.
Is pleading the Fifth an admission of guilt?
No, you can be innocent and assert the Fifth Amendment. But public figures and officials often avoid invoking the Fifth Amendment because "even though people should not infer guilt, people regularly do," O'Sullivan said.
For example, at a September campaign rally in Iowa last year, Trump criticized one of Hillary Clinton's former technology specialists for invoking the Fifth Amendment.
"The mob takes the Fifth Amendment," Trump said. "If you're innocent why are you taking the Fifth Amendment?"
Trump himself took the Fifth Amendment 97 times regarding questions about infidelity during a deposition related to his divorce from Ivana Trump in 1990, the Huffington Post reported in September.
Could the Senate fight Flynn on this?
O'Sullivan explains that there is one exception to the Fifth Amendment that the Senate committee might be able to use to challenge Flynn.
Under the "foregone conclusion doctrine," the Supreme Court ruled that the government could compel someone to turn over documents if the government already knows those documents exist. For example, if Flynn met with Russian officials while serving as national security adviser. any logs that would be kept as a matter of record would not be protected under the Fifth Amendment because their existence would be a foregone conclusion. But, the government must use "reasonable specificity" in requesting documents. For example, the government can't simply request all of your bank records because everybody has bank records.
"It's a very common government assertion in response to a Fifth Amendment plea, so I wouldn't be at all surprised if people start yelling, 'forgone conclusion," O'Sullivan said.
What about immunity?
Another way the Senate could get a hold of the documents would be through granting Flynn "right of production immunity," O'Sullivan said. But she saw that as unlikely because such immunity could seriously damage any potential criminal case.
So how could the Senate move forward?
First, the Senate would have to find Flynn in contempt for failing to turn over the documents in an open vote on the Senate floor, said Michael Greenberger, a law professor at the University of Maryland. From there, they could either refer the matter to the U.S. attorney for Washington, D.C., to bring criminal contempt charges, or the Senate could file a " declaratory order action" seeking an injunction forcing Flynn to turn over the documents.
Since the Department of Justice would decide whether to bring criminal contempt charges, Greenberger believes the first option is unlikely. During the Obama administration, a federal judge declined to charge then-attorney general Eric Holder after the House voted to find him in contempt.
If the Senate seeks an injunction, the matter would be decided in civil court. That court would rule whether or not Flynn's documents are protected under the Fifth Amendment.
Because of public pressure, the Republican-controlled Senate will likely try to fight Flynn in court, Greenberger said. But how ferociously the legal counsel for the Republican Senate battles is another question, he added.
"They wouldn't overtly appear to be delaying," he said. "But in pursuing court remedies, your strategy, which may not be on people's radar screen, could be not doing everything you can to get this case resolved as quickly as possible. They may appear to have their shoulder to the wheel but not really."
Dragging the case out has its own political consequences, however.
"Having an open proceeding trying to turn these documents over will be a thorn in the side of the administration as long as it continues," Greenberger said.
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