The Briefing Room
General Category => Politics/Government => Topic started by: mystery-ak on May 23, 2017, 05:41:49 pm
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Burr says new steps coming to get Flynn to comply with subpoena
By Burgess Everett
05/23/2017 11:56 AM EDT
The Senate Intelligence Committee will likely take new actions Tuesday to force President Donald Trump's former national security adviser Michael Flynn to comply with a subpoena, Chairman Richard Burr said in an interview.
The committee served Flynn with a subpoena to compel him to turn over documents regarding his contacts with Russian officials, but Flynn has asserted his right not to incriminate himself. The committee is mulling compelling him to appear before the panel and perhaps subsequently holding Flynn in contempt of Congress, among other options designed to make him produce the documents.
more
http://www.politico.com/story/2017/05/23/michael-flynn-comply-subpoena-238725
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Burr says new steps coming to get Flynn to comply with subpoena
By Burgess Everett
05/23/2017 11:56 AM EDT
The Senate Intelligence Committee will likely take new actions Tuesday to force President Donald Trump's former national security adviser Michael Flynn to comply with a subpoena, Chairman Richard Burr said in an interview.
The committee served Flynn with a subpoena to compel him to turn over documents regarding his contacts with Russian officials, but Flynn has asserted his right not to incriminate himself. The committee is mulling compelling him to appear before the panel and perhaps subsequently holding Flynn in contempt of Congress, among other options designed to make him produce the documents.
more
http://www.politico.com/story/2017/05/23/michael-flynn-comply-subpoena-238725
If the documents in Flynn's possession are covered under the Fifth Amendment, Flynn's probable next step will be to show up only to invoke the Fifth Amendment in public and then walk out.
The MSM will love this, if I am correct about the scenario.
(P.S. Do we have any TBR lawyers able to comment on withholding document production in these situations?)
@Maj. Bill Martin
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Well...it can be a bit complicated. The broader, less-specific the request, the more likely it is that the 5th Amendment will protect him.
The Fifth Amendment only applies to testimony, or to actions that have a testimonial component. For example, you cannot refuse to supply a blood sample or DNA based on the Fifth Amendment because it goes to the existence of an independent, pre-existing fact --characteristics of your blood. Generally, the production of pre-existing documents doesn't constitute "testimony", though being asked to authenticate the documents, or to create documents that don't already exist, would be protected under the 5th.
BUT, the broader the subpoena, and the more effort (especially mental effort/decision-making) that a witness must do to identify and locate the documents, the more likely it is that their production can be shielded by the 5th. So for example, if a witness was directed to produce specific documents already known to exist, that probably isn't protected. But if they're told to "turn over all documents that have to do with your dealings with Russians", I'd say there's a pretty good argument that is protected. That's kind of what happened with Webster Hubbell, and the Supreme Court ordered the dismissal of the indictment based on those documents because he was required to comply with the subpoena over his 5th Amendment objections.
The other complication is that if some of the documents exist and are possessed by any business corporation he created, they don't have Fifth Amendment rights, so they could be compelled to produce those documents even if he cannot be compelled personally. But there would have to be a separate records custodian or individual in possession, custody, or control of those documents for that loophole to exist.
As I said, it's a bit complicated....
@the_doc