On Tuesday, House Oversight Chairman Jason Chaffetz and ranking Democrat Elijah Cummings announced that former National Security Adviser Michael Flynn failed to report foreign payments on his SF-86 security clearance application in January, which may be in violation of the law. But could Michael Flynn really go to jail for the omission? According to Cummings, intentionally not reporting the earnings is a felony punishable by up to five years in prison. But it's nearly impossible to definitively determine whether Flynn left the payments off on purpose. A representative for Flynn did not immediately return Romper's request for comment.
Flynn received more than $45,000 to give a speech in Russia in 2015. The payment came from RT, a government-controlled television station. Flynn is a retired general, and as such, he's prohibited from accepting foreign payments under Article I, Section 9, Clause 8 of the Constitution, which prohibits U.S. officials from accepting a "present, Emolument, Office, or Title, of any kind" from a foreign government "without the Consent of the Congress." President Donald Trump himself has been accused of violating this clause, but his attorney, Sheri Dillon, argued that "Paying for a hotel room is ... not an emolument." In fact, payment for services rendered is the very definition of "emolument."
Flynn has been under fire since the early days of the Trump administration, when he was forced to resign after it was revealed that he once misled then-Vice President-elect Mike Pence about whether he discussed sanctions with Russian Ambassador Sergey Kislyak. Flynn claimed that omission was inadvertent. He was also recently forced to acknowledge that he worked as a foreign agent while advising the Trump campaign last year, representing the interests of the Turkish government rather than the United States. Flynn has offered to testify to the House and Senate Intelligence Committees about the Trump campaign's Russian ties in exchange for immunity (a move he once told NBC News' Chuck Todd "means you've probably committed a crime"), but so far, he's not made any deals.
In a press conference on Tuesday, Chaffetz said he found "no data to support the notion that Flynn complied with the law." He and Cummings characterized Flynn's actions as "inappropriate" and "extremely troubling," but stopped short of declaring them illegal. However, Virginia Rep. Gerry Connolly, a Democratic member of the committee, told CNN there's "no question" Flynn committed a crime. Even if that could be proven, though, there's very little case law in how to handle it. According to The Washington Post, the so-called "emoluments clause" has never been addressed by the Supreme Court, or any other major case. It's theoretically possible that a prosecutor could seek jail time, but it's completely uncharted territory.