Flynn Submits Letter Pleading the Fifth Before Congress

Former National Security Advisor Michael Flynn will plead the fifth, refusing to testify in front of the Senate Intelligence Committee unless he is granted immunity from criminal prosecution. He submitted his refusal via letter this afternoon.

Can he do that? Actually, yes. Government officials pleading the fifth (as in, using your Fifth Amendment right to not testify and potentially incriminate yourself) might even be called a time-honored tradition.

Many government officials under both Republican and Democratic administrations have pleaded the fifth in response to questioning by congressional committees dating back to the time of the McCarthy hearings. Some have gone on to be declared in contempt of Congress, like Lois Lerner, who was called to testify about improper targeting by the IRS of conservative groups seeking tax-exempt status. Many have not.

Lerner, according to some legal experts, left herself open to the contempt charge by offering partial testimony. Harvard law professor Alan Dershowitz argued in reference to Lerner:

"You can’t simply make statements about a subject and then plead the Fifth in response to questions about the very same subject . . . . Once you open the door to an area of inquiry, you have waived your Fifth Amendment right . . .you’ve waived your self-incrimination right on that matter."

John Mahoney, a lawyer specializing in labor and employment law, offered this counterargument:

"The committee likely has a good sense of whether any criminal activity occurred at the IRS. If a crime likely occurred and Ms. Lerner has any potential criminal exposure, then she has every right to exercise her Fifth Amendment rights to remain silent, unless she is granted what is called ‘use immunity’ from such prosecution by Justice based on her testimony...If she has no criminal exposure, then the committee through Dept. of Justice (DOJ) should grant her use immunity, so the committee can compel her testimony and get at the truth."

Lerner was found in contempt of Congress, but the DOJ declined to pursue criminal contempt charges against her and she never testified fully.

As previously outlined by Countable, the decision before the Senate Intelligence Committee now is the same with Flynn as it was with Lerner. They can offer him immunity or they can pursue contempt of Congress charges. If they pursue a contempt charge the full Senate needs to vote on it. If they vote in the affirmative Flynn could be arrested by Capitol police in the hopes of compelling testimony, but that hasn’t happened since 1935. Otherwise, they have to pass the torch to the DOJ or the federal district court, which may decline to pursue further charges.

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— Asha Sanaker

(Photo Credit: Mike Licht via Flickr / Creative Commons)