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Friday, December 1, 2023

Flynn hiding behind Fifth Amendment?

Mike Flynn. (AP Photo/Evan Vucci, File)

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:


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.


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.


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 — who has not admitted to any wrongdoing — say he is looking to protect himself from an “escalating public frenzy” of “outrageous allegations.”

“The context in which the committee has called for General Flynn’s testimonial production of documents makes clear that he has more than a reasonable apprehension that any testimony he provides could be used against him,” the lawyers wrote.


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.


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 on the basis of other evidence of a crime. The committee would have to notify the attorney general before applying for an immunity court order.


Associated Press writer Deb Riechmann contributed to this report.

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2 thoughts on “Flynn hiding behind Fifth Amendment?”

  1. Very unlikely that Flynn himself has control over all copies of the documents they seek. They can get stuff from Flynn’s assistants by offering THEM immunity. Of course, Flynn can’t be forced to incriminate himself but it looks bad for Trump because Flynn taking the fifth means he DID do something criminal!

    • Yep. So can pretty much every email provider, every ISP, and his cellphone company(ies). Funny, though, it seems that those sort of subpoenas are only used against little people (and Hillary Clinton).

      Nonetheless, it’s his right, and he can use (and abuse) it. J.

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