What is the Significance of Grand Jury Subpoenas in the Flynn Investigation?

CNN is reporting that a federal grand jury sitting in Alexandria, Virginia, has issued subpoenas in the last weeks seeking documents and records from associates of Michael Flynn pertaining to Flynn’s activities after he was forced out as head of the Defense Intelligence Agency in 2014 and before he became Trump’s National Security Advisor in 2017.  Does this development represent a significant escalation in the investigation of Flynn? The answer is, not necessarily.

The grand jury subpoenas indicate that the Flynn investigation continues – which is no surprise, given the laundry list of potential charges he faces – but they are otherwise routine and expected, and they do not necessarily signal that charges are imminent or that the Justice Department has made any particular assessment about the seriousness or direction of the investigation.

Grand juries perform both a charging and an investigatory function. On the charging side, a grand jury must determine that there exists probable cause to believe that an individual has committed a felony offense before that person can be indicted for that crime. In this respect, the grand jury serves as the mechanism by which charges are initiated, and it provides some (minimal) protection against unfounded charges.

At the same time, the grand jury has an important investigative function, as it has the authority to subpoena documents and witnesses. In any complex or long-term criminal investigation, therefore, federal prosecutors will go to the grand jury to compel the production of documents or records, or if they want to force witnesses to testify under oath, which a grand jury subpoena requires unless the witness has a valid privilege not to testify. Grand jury investigations can last for months or even years, as prosecutors chase down evidentiary leads and amass the documentary and testimonial evidence.

Resort to the grand jury does not, however, necessarily mean that charges will follow.  Prosecutors will not seek grand jury subpoenas if they think there is no chance that a federal crime was committed, but they may nonetheless ultimately decide, following a thorough grand jury investigation, that criminal charges are unwarranted, either because the prosecutors determine that there was no wrongdoing, or that the available evidence is insufficient to prove the criminality beyond a reasonable doubt at trial.

In the Flynn case, there have been suggestions that he may have violated the Foreign Agent Registration Act; lied to the FBI about his conversations with Russian Ambassador Kislyak when he was interviewed on January 24, 2017; or failed to disclose on his security clearance forms that he had received money from foreign governments after leaving the military and before assuming the role of National Security Advisor. The critical question with respect to these potential charges will likely be Flynn’s intent, i.e. did he purposely fail to register, make false representations, or withhold information, or were these failures simply oversights or mistakes? That determination can only be made on the basis of all available information, allowing an assessment of what Flynn knew, when he knew it, whether he was cautioned about the rules, what he reported, whether it was plausible that he forgot or made mistakes, and so on.

In this regard, it is unexceptional that the prosecutors would seek documents pertaining to Flynn’s activities before he became National Security Advisor. Assuming the Justice Department continues to be committed to a thorough investigation of all allegations of wrongdoing by Flynn and other Trump administration officials, now put into question by FBI Director James Comey’s firing, it is likely that the grand jury will continue to seek documentary and testimonial evidence to fill out the whole evidentiary picture. At this point, though, all that can be said is that the subpoenas indicate that the investigation is not going to go away anytime soon, and is serious, but not necessarily where it will lead or how it will end.

 

Image: US Attorney Dana Boente, US Attorney’s Office for the Eastern District of Virginia-Dept of Justice 

About the Author(s)

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).