Despite pleading the Fifth Amendment, the Senate can still arrest Michael Flynn for contempt

Michael Flynn is pleading the Fifth in response to a subpoena from the Senate Intelligence Committee, according to the Associated Press. But while that gets him off the hook from having to testify before the committee, it may represent merely the beginning of his legal troubles. Here’s Flynn’s problem. He’s not merely refusing to testify; he’s refusing to turn over relevant documents – and the Fifth Amendment doesn’t automatically cover that.

It’s still not yet entirely clear whether Michael Flynn is planning to turn over the subpoena’d documents to the Senate committee, even while invoking his Fifth Amendment right not to testify. But if he doesn’t turn over the documents, he’s arguably in violation of the subpoena; past case law is inconclusive (link). There is also a legal argument that Flynn might only be required to turn over documents that are already known to exist. But the Senate can hold Flynn in contempt over the documents if it chooses to, and if a judge agrees, he can be sent to jail for it.

In fact Flynn appears to be almost daring the Senate to have him arrested. So now we may be about to find out just how serious the Senate is when it comes to getting to the bottom of this matter. Donald Trump’s own Republican Party holds a slight majority in the Senate overall and on every Senate committee, but only a small handful of Republican Senators would need to vote for any given action alongside the Democrats for it to pass.

For that matter the Senate Intel Committee’s willingness to pursue the Trump-Russia scandal so thoroughly up to this point is a result of one Republican committee member, Susan Collins of Maine, having opted months ago to vote in favor of a serious investigation. The Republicans only have a one vote majority on the committee to begin with, and Collins single handedly tilted its balance of power. In a full Senate vote on contempt, only she and two other Republicans would need to vote yes for it to pass.

So if Michael Flynn keeps thumbing his nose on the subpoena’d documents, we’ll see if the Senate decides to simply let the FBI and Special Counsel deal with him instead – or if Flynn ends up behind bars for contempt of Congress.


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Bill Palmer is the founder and editor in chief of the political news outlet Palmer Report




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4 Comments

  1. Claudia on May 22, 2017 at 1:56 pm

    Lock him up
    Lock him up
    He seems to think he can work his way out of this.
    I pray all committees and FBI etc show differently.
    I’m certain once he learned Trump can not pardon anyone, he decided to take the 5th!
    What a jerk,
    Lock him up then cram the bill down his lying mouth!

  2. Tuco on May 22, 2017 at 3:08 pm

    Hubbell case: Fifth Amendment protects against compelled statements that lead to discovery of incriminating evidence even if the statements are not incriminating and not used as evidence. Producing incriminating documents under subpoena, and his responses to the questions regarding the production could have a compelled testimony aspect which is protected by the 5A.

    In other words, if the very act of responding is incriminating, you don’t have to respond to the subpoena. In other other words, he’s so SCREWED that anything he says in response to the subpoena would incriminate him. This is why he wanted immunity!! He’s in deep doo-doo and literally can’t open his mouth or write a sentence without incriminating himself!!

    They could also force him to appear so he can sing the Ollie North, corrupt trash song, “My memory is SHREDDED…plead the FIF!!” Waste of time, but will be something to laugh at on the Nightly News.

  3. bill on May 22, 2017 at 3:25 pm

    Bet they don’t, though. They’ll shrug and say Oh well, we tried…. hey, what’s for lunch?

  4. Water Lily on May 22, 2017 at 7:32 pm

    He’s probably trying to get himself into Federal prison so that he won’t end up dead like all those other Russians.

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