General Michael T. Flynn says he won’t give the U.S. Senate Intelligence Committee the information they want unless they guarantee him immunity from criminal prosecution. The Committee is investigating Russia’s role in the 2016 presidential election. They previously asked him to volunteer the information, but Flynn refused and the Committee upped the ante by issuing a subpoena.
The high stakes game of legal strategy is being played out in the capital between Congress and the retired Army general who was, until fired, President Trump’s National Security Advisor. It’s not exactly clear how much immunity Flynn seeks, but it’s probably the whole deal, “transactional” or “blanket” immunity, which protects him from ever being prosecuted in any criminal case related to this subject. Giving Flynn immunity is no easy task. It requires cooperation and agreement from the executive branch law enforcement prosecutors, the U.S. Attorneys, who would be barred from bringing criminal charges against Flynn. As Flynn continues to resist, the Committee is likely to continue to seek greater leverage to gain his cooperation.
The legal foundation for Flynn’s strategy is, of course, the Fifth Amendment of the U.S. Constitution. The Flynn-Senate Committee showdown shows just how far Fifth Amendment constitutional jurisprudence has been extended. The language of the Amendment, itself, does not contemplate a request for documents (or even testimony for that matter) by a legislative investigative committee. It says in relevant part:
No person shall be…compelled in any criminal case to be a witness against himself…
The explicit language, very clearly contemplates a person being forced to testify against themselves in their own criminal case.
Universal agreement among scholars and historians is lacking about the origins of the 1789 amendment’s protections, but the rationale is centered on the word “compelled.” The founders were concerned about forced confessions resulting from psychological governmental pressure that bordered on torture of largely unrepresented defendants in a colonial inquisitorial process. Regardless of the debate over the origins of the rule, it has been accepted and the breadth of its protections enlarged.
Over the years, the U.S. Supreme Court has extended the shield of the Fifth Amendment to witnesses called in other people’s criminal cases. They have applied it to virtually any setting, criminal, administrative or even civil, where the answers given by a witness could possibly be used to convict them in a criminal trial. We have come to accept the broad extensions of the Amendment’s protections, but when you really think about it, allowing it in a congressional hearing, when no criminal case exists anywhere, is quite an elastic stretch from the language of the Constitution.
There are good reasons view the protections broadly. If viewed narrowly the government could make an easy end-run, and for example, they could prosecute one criminal defendant first, then call a targeted witness in that case to use their testimony against them in a future case. Similarly, they could sue the targeted witness in a civil suit, take their deposition and use the testimony against them in a criminal case. But extending the protections to a witness, a high level former federal official, in a Congressional, non-criminal, legislative investigation, and one in the undisputed national interest is very different from those two scenarios.
Further, there are many good reasons to allow Congress to investigate matters in the national interest, and possible Russian interference in our presidential election certainly fits that category. How else can Congress investigate unless they can get the documents or the version of the truth from the very people in the position to supply it?
Prosecutors, when deciding whether to grant immunity weigh the benefits of granting it against the value of the testimony. If the witness is less important to them than some other more important target the testimony will lead them to, they are more inclined to give the immunity. In this case, a presidential cabinet member is about as high as it gets. Unless the real target is the President, of course.
Meanwhile as the Congressional national security investigation continues, the F.B.I., with or without James Comey, is also pursuing its own criminal investigation. If the evidence leads to a criminal prosecution or Flynn somehow ends up testifying before Congress with immunity, it will become clear that he had a good reason to assert the privilege afforded him in 1789 by Constitutional amendment.
One thing to be confident in is that the rule of law, viewed broadly or narrowly, will govern the day, not the will of a General or even the President.