Michael Flynn And The Lessons Of Oliver North
Mike Flynn's going to ignore that congressional subpoena and that's the right move.
Gen. Michael Flynn (Photo by the Defense Department via Wikimedia)
Senator Richard Burr informed reporters that ex-National Security Advisor Michael Flynn is not going to honor the subpoena issued by Burr’s panel. And then Burr walked that back, saying he hasn’t heard from Flynn’s lawyers because it’s not a political statement in this administration until it’s been recanted and reversed at least once. Still, if Flynn does opt to ignore the subpoena, that’s not really a shock — Burr acknowledged as much — considering the legal hornet’s nest the former general finds himself in. To the uninitiated, ignoring a subpoena sounds pretty bad, and it certainly isn’t a great look, but what choice did Flynn really have here? Self-incrimination is a bitch, y’all.
But, some might ask, don’t people have to respond to subpoenas? Isn’t that, like, a rule? Welcome to the murky world of congressional subpoenas! Because contempt of Congress may be a thing, but going to prison just to humor some grandstanding politicians isn’t a favorable trade-off.
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Plus, who’s going to prosecute him for that? Robert Mueller still works for the executive branch — this isn’t like the old Independent Counsel who operated wholly (as the name implies) independently. Mueller’s special counsel gig enjoys more latitude than Rod Rosenstein had on his own, but he’s ultimately still part of the executive branch and there’s at least a colorable argument that Congress can’t force the executive branch to prosecute contempt if the latter doesn’t want to. If Mueller — who can indict Flynn — wants to subpoena Flynn, then Flynn and his attorney will jump off that bridge when they come to it. But there’s no need to give everyone a free preview of Flynn enduring the public relations nightmare of repeatedly invoking the Fifth Amendment on national television.
One way to get around that, of course, would be to grant him immunity. As the Chicago Tribune explains:
Nina Ginsberg, a veteran Washington defense attorney with extensive experience in national security cases, said that without an ironclad immunity deal from the committee, Flynn would have been exposed to questioning from investigators about any personal documents he gave up.
But frankly even that ironclad immunity deal might not mean all that much. That’s the Oliver North conundrum. When North testified in the Iran-Contra hearings — something he did only after receiving immunity from Congress — he still got convicted when he found out that prosecutors didn’t really give a damn what Congress was willing to offer him. Ultimately a divided panel of the D.C. Circuit threw out his conviction based on the argument that the government’s case was “tainted” by the congressional testimony that North theoretically gave under an immunity deal. Flynn doesn’t seem keen to test whether or not he’ll be protected by the North appeal from almost 30 years ago and that’s probably a good move.
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So here we are. No, Flynn’s not going to honor that congressional subpoena, and until Congress decides to start unilaterally arresting people for contempt (which they theoretically can do!), that subpoena’s not worth the paper it’s printed on.
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.
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