Michael Flynn Will Be Pleading the Fifth - Here's What That Means

May 22nd 2017

Mike Rothschild

In another twist in the investigation into the links between President Donald Trump and Russian interference in the 2016 election, the Associated Press reported that Trump's former National Security Advisor Michael Flynn will be refusing to testify to the Senate Intelligence Committee.

Instead, he will invoke his Fifth Amendment right against self-incrimination.

Flynn has been the focus of the Russia investigation, particularly his frequent contacts with the Russian ambassador to the United States during and after the election.

As part of their investigation into Russia's actions, the Senate Intelligence Committee issued a subpoena to Flynn, requesting documents and record pertaining to Russia. Flynn had previously offered his testimony to both the Senate and House Intelligence Committees, in exchange for immunity.

That offer was rebuffed, and it appears Flynn has rebuffed the Senate in response. By invoking the Fifth, he's also done it in a way that's been roundly mocked by none other than Trump and his associates when Hillary Clinton associates have used it. One of the people mocking it? Michael Flynn himself.





While the Senate Intelligence Committee is not a legal body, it does have the legal power to subpoena witnesses, and to file contempt charges against those who refuse.

And while Flynn can theoretically dodge the subpoena by using it, the Washington Post points out that case law has found that the amendment doesn't have the same protection when applied to past statements, and that Flynn could be found in contempt no matter what.

Despite pop culture misrepresentations, however, pleading the Fifth Amendment is not a tacit admission of guilt.

"The thing to understand is that “self-incrimination” is not tantamount to “admitting guilt.” Self-incrimination can mean providing any information that might be used against you, fairly or unfairly," New York Magazine reported in 2013.

The U.S. Supreme Court re-affirmed the right for innocent people to refuse to give testimony that might be used against them in the 2001 case Ohio vs. Reiner. In a unanimous decision, the Supreme Court found that a babysitter didn't have to testify in a case where a father was accused of killing his newborn baby, out of fear that her own testimony would be used by the father's defense team to pin the death on her.



Flynn would be the next in a long line of witnesses invoking the Fifth at a Congressional hearing. Most recently, IRS official Lois Lerner took the Fifth twice regarding her role in the scandal involving the IRS targeting conservative nonprofits for additional scrutiny. Others have included:

  • Reviled pharmaceutical industry executive Martin Shkreli, who invoked the Fifth and refused to answer questions about his firm's massive drug price hikes during a House hearing.
  • The executives of Solyndra, a green energy company used by conservatives as a case study for the Obama administration's failure. It took over half a billion dollars in federal stimulus funding and still went bankrupt.
  • Baseball great Mark McGwire, who refused to testify during a House hearing on the use of steroids in baseball.
  • Lt. Col. Oliver North and National Security Adviser John Poindexter invoked the Fifth during the Senate investigation into the Iran-Contra affair.

The Senate has also subpoenaed documents from Trump Foreign Policy Adviser Carter Page, confidante and adviser Roger Stone, and former Campaign Chairman Paul Manafort. None have provided a response to the Committee, so far.