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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