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Q&A with Andy Wright on Flynn, Subpoenas and “Privileged Information”

 

CNN reported Tuesday that retired Lt. Gen. Michael Flynn, President Donald Trump’s first national security adviser, has twice declined to comply with a subpoena to appear as a witness before the Senate Intelligence Committee. He first did so in May, and has more recently refused a second request from the committee, asserting his Fifth Amendment rights. The House Intelligence Committee has also subpoenaed him. In March, Flynn offered to testify before both committees in exchange for immunity from prosecution but neither committee took him up on the offer. More news about Flynn came Wednesday morning: House Democrats say they have evidence that he failed to disclose a trip he took to the Middle East to help broker a $100 billion deal between Saudi Arabia and Russia’s nuclear power agency when he reapplied for his security clearance in 2015, according to CNN.

Meanwhile, at the White House, Sarah Huckabee Sanders, the president’s spokeswoman, has accused former FBI  Director James Comey of various misdeeds each time she’s taken the podium this week. On Monday, she said he’d given “false testimony” and accused him of “leaking privileged information to journalists.” When asked by a reporter if she was saying that Comey had perjured himself when testifying before Congress, she said, “I think that’s something, probably, for [the Justice Department] to look at, not me.  I’m not an attorney.” On Tuesday, she repeated the allegation that Comey leaked “privileged government information,” and took it a step further saying, “His actions were improper and likely could have been illegal,” but later she said, “But I’m not here to ever direct DOJ into actions that they should take.”

To try to make sense of the latest news, I turned to Just Security’s Andy Wright, my go-to expert on congressional investigations.

 

Q. How is Flynn able to refuse these congressional subpoenas?

A. Broadly speaking, Flynn may be able to resist a subpoena compelling him to offer testimony that is the subject of Flynn’s valid assertion of a Fifth Amendment right against self-incrimination. It is clear that Flynn faces significant criminal exposure, especially for alleged false statements to FBI agents who interviewed him about the nature of his conversations with Russian Ambassador Sergey Kislyak during the presidential transition. Congress, like a court, has the ability to issue a subpoena to compel testimony. Also, like a court or a grand jury, Flynn may assert the Fifth Amendment in the face of compelled testimony in front of Congress. At that point, Congress can either grant use immunity under its statutory authorities, 18 USC 6002 and 18 USC 6005. No congressional committee has done so, so unless Flynn has waived privilege, evidence of which I have not seen, Congress cannot compel his testimony.

The distinction between a committee’s subpoena and a “request” for testimony is legally significant. Based on the media reporting I’ve seen to date, I can’t tell whether there was a second subpoena issued or whether the first subpoena is still driving the committee demands.

For more information on assertions of the Fifth in front of Congress, see pp. 25-36 of Congressional Due Process.  For more information on immunity grants, see pp. 31-32 of the Congressional Oversight Manual

Q. Are there any further steps the Senate Intelligence Committee can take to compel him to testify?

A. First, Congress could offer him immunity. However, doing so could frustrate the parallel criminal investigation because it would require prosecutors to demonstrate they did not rely on any immunized testimony, even for leads derived therefrom, in any subsequent prosecution. The statutes require consultation with the Department of Justice, which here would be chiefly the Special Counsel.

Second, if the committee chair and colleagues rule that Flynn has waived privilege, they could seek to hold him in contempt of Congress. I have yet to see facts sufficient to support a ruling of waiver. The committee could insist that Flynn appear in order to assert the Fifth in person under oath, however I am of the general view that such a requirement is designed more for public shaming than to serve a legal purpose when counsel has represented Flynn’s intent to assert.

Q. Why hasn’t the Senate Intelligence Committee held him in contempt yet?

A. The committee has not held Flynn in contempt because Flynn is acting within his constitutional right to remain silent when in legal jeopardy.

Q. Refusing to comply with a congressional subpoena doesn’t look great. What do you think Flynn’s strategy is? What’s his cost-benefit analysis here?

A. There are lots of reasons to try to avoid asserting the Fifth Amendment in highly scrutinized and politicized cases such as the Russia investigations. While the privilege is designed to protect both the guilty and the innocent from prosecutorial overreach, it comes with great reputational damage in fact. In my best judgment as an observer, two things are informing Flynn’s strategy: (1) he faces a clear and present likelihood of indictment for at least a False Statements felony under 18 USC 1001. and (2) Flynn has already had his lawyer publicly signal his intent to assert the Fifth. Reputational damage has already been priced into Flynn’s defense team’s calculations. At this point, the whole game for Flynn is avoiding conviction and jail time.

Q. Does Special Counsel Robert Mueller have tools to compel testimony not available to congressional investigators?

A. Like Congress, Mueller can offer immunity. Unlike Congress, however, a prosecutor also use charging decisions as leverage for testimony and or plea bargains. For example, let’s say Mueller’s grand jury had probable cause to indict Flynn for, say, a Logan Act violation, three FARA criminal offenses, and two False Statement offenses. Mueller could offer to proceed with only a single felony count of False Statements in return for a guilty plea and a favorable sentencing recommendation predicated on substantial assistance to the government, including testimony before Congress and the Grand Jury.

Another interesting idea: During Watergate, Judge John Sirica used sentencing to leverage congressional testimony from several figures who were convicted in criminal trials but had used the Fifth Amendment as a shield against Congress. There is some doubt about whether that methodology is viable today, both in the context of the federal sentencing guidelines and more recent Fifth Amendment waiver cases, but it is worthy of contemplation.

Q. If Flynn did indeed take this trip and fail to disclose it on his security clearance form, is that significant?

A. An undisclosed effort to help broker a deal for Russian government entities is a huge revelation in the context of the Russia investigations. It could be significant legally as it relates to FARA, False Statements, or Espionage Act investigations. The legal significance for each would turn on the nature of Flynn’s role in the deal and his mental state about the failure to disclose.

Q. At this point, is it safe to say that Flynn has some serious criminal liability?

A. Flynn is in significant legal jeopardy of criminal prosecution.

Q. What is Huckabee Sanders talking about when she says Comey “leaked privileged information”? Was the information “privileged”? Even if it can be argued that it was, is this a crime?

A. What Comey did appears to me to be no worse than former officials, like Robert Gates, disclosing Oval Office conversations in their books. I have been critical of that practice, but I do not believe it is illegal.

Presidential communications with senior advisers are presumptively amenable to an assertion of executive privilege by the president. In addition, the Executive Branch has significant confidentiality interests in open criminal investigation files, which have also at times been shielded by presidential assertions of executive privilege.

There are a couple of problems for the Huckabee Sanders argument here, however. First, it is not clear that Comey’s conversations with President Trump, as reported, constituted advice in any traditional sense. In fact, it may have been evidence of criminal conduct by the president. Second, President Trump has not asserted executive privilege over those memos or Comey’s testimony. The act of the president’s assertion of privilege itself has significance because it means the president thinks the threat posed by the information to the institution of the executive branch is worth internalizing the political costs of appearing to try to hide something. President Trump has not done so. Instead, his staff is trying to complain about leaks without onboarding the costs.

I do not see Comey facing any criminal liability for disclosures of unclassified material, even if it were the potential subject of an assertion of executive privilege. He may have violated a Department of Justice policy or regulation, but I would have to defer to subject matter experts on that.

Finally, like just about every single lawyer in America, I would strongly advise the White House staff to stop pundit-like commentary from the podium about an ongoing criminal investigation touching on the president and his associates. It is only worsening matters for the White House and the presidency as institutions.

Q. Is there any evidence that Comey gave “false testimony”? If he did, what are the consequences?

A. Any time two witness provide divergent and irreconcilable sworn testimony as to a material event, either one could be accused of perjury, which is a felony.  A prosecutor would need to come to the judgment that one of the actors is lying and there is sufficient evidence to mount a successful prosecution. The evidence would consist of the statements, documents, indications of motive, timelines, context, character, and so forth. Here, Comey has had a consistent story about his interactions with President Trump, one that he reportedly told to senior FBI officials in real time, and one that he documented with memoranda in real time, all of which occurred prior to his termination by the president. On the president’s side, there have been inconsistent, post-hoc rationales offered. What we haven’t seen, and Mueller will, is what other relevant witnesses say about these matters both on the White House staff and in the front office of the FBI. As to character, Comey has been accused of sanctimony but his truthfulness has not really come into question in the past. President Trump, however, has a long history of exaggeration and dishonesty. As for honesty, the Trump White House is made of glass and Huckabee Sanders ought not throw stones.

Q. Is it appropriate for the White House spokeswoman to be suggesting what the Department of Justice should be “looking into”?

A. No. It is wholly inappropriate for the White House to exert pressure as to investigative targets from the podium. We need evenhanded administration of justice. That means that the president’s constitutional duty to “take care that laws be faithfully executed” means that his White House staff should not politically interfere in criminal investigations, especially when it is self-serving to a president under investigation. I am currently 25 pages into a draft law review article called Justice Department Independence and White House Control that explains why in great detail.

Q. Are any of her comments relevant to Mueller’s obstruction of justice investigation?

A. Only at the margins. To the extent Huckabee Sanders makes representations about the truthfulness of the president’s account of events, Mueller may want to explore the basis of her knowledge.

Image: Drew Angerer/Getty

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About the Authors

is the deputy managing editor of Just Security and a nonresident senior fellow at the Brent Scowcroft Center on International Security at the Atlantic Council. Previously, she was a senior reporter covering the Pentagon for Foreign Policy. Follow her on Twitter (@K8brannen).

is a professor at Savannah Law School and former Associate Counsel to the President in the White House Counsel’s Office. Follow him on Twitter (@AndyMcCanse).