While President Trump is off on his "Let's See How Many Foreign Nations I Can Offend In One Trip" tour of the world, the Trump-Russia investigation has been heating up back at home. On May 10, the Senate Intelligence Committee issued a subpoena for certain documents belonging to Gen. Michael Flynn, Trump's former national security adviser at the heart of the ongoing sprawling investigation into alleged collusion between the Trump campaign and Russia. According to the Associated Press, Flynn is expected to invoke his Fifth Amendment later Monday, but what does "pleading the Fifth" mean for Michael Flynn, exactly?
The Fifth Amendment provides American citizens with a number of protections when it comes to the criminal justice system, including protection from double jeopardy and that a defendant gets their due process in trial. But here's what Flynn will specifically invoke when pleading his Fifth Amendment right is this following section:
No person shall... be compelled in any criminal case to be a witness against himself.
If you've ever watched Law & Order, you might recognize the Fifth Amendment from when a defendant on the stand in court refuses to answer questions while providing oral testimony. But some wonder if the Fifth Amendment protects written testimony, such as Flynn's documents subpoenaed by the Senate Intel Committee.
Like just about anything associated with the law, there's a lot to parse out from solely the language of the law — and even then, it can still be left up to interpretation by the courts. That said, as the Constitution Center noted, prosecutors and investigators can't go on a "fishing expedition" for evidence, using their subpoena power as bait.
Since the Senate Intel Committee subpoenaed "documents related to the panel’s investigation into Russia’s election meddling," as PBS Newshour reported, it would appear that the committee's subpoena doesn't name specific documents. Unfortunately for the committee, that means that these documents requested of Flynn are likely protected by the Fifth Amendment — but there is a legal loophole that could help out investigators: Granting Michael Flynn immunity.
Immunity works like this: If Flynn turns over the documents requested by the Senate Intelligence Committee, he wouldn't be prosecuted for any incriminating material about him found within those documents. Flynn already requested immunity in the Trump-Russia investigation back in March, offering to testify to the committee in exchange for immunity from prosecution. His request was summarily rejected at the time.
Flynn's surprising Fifth Amendment move puts the Senate Intel Committee in a bind: They suspect Flynn has documents they need to review to achieve the goal of their investigation, but they don't know exactly what those documents are. Even with a subpoena, they can't compel him to produce those documents without being more specific as to what they are. If the committee wants to get their hands on those documents, the only way they're going to be able to get them is by offering him immunity — which sets Flynn up to become the GOP fall guy, like Oliver North did during George H.W. Bush's administration in the wake of the Iran-Contra affair.
Of course, the most surprising "but not really when you think about it" part about it all is that Flynn himself told Meet The Press in 2016, "When you're given immunity, that means you probably committed a crime," criticizing Hillary Clinton's aids during the investigation of her personal email server. Even Trump has called out immunity and the Fifth Amendment for their incriminating appearance. In 2014, Trump weighed in on the rape allegations against comedian Bill Cosby, tweeting, "I am no fan of Bill Cosby but never-the-less some free advice - if you are innocent, do not remain silent. You look guilty as hell!" (Cosby has denied all allegations against him and said that some were consensual sex.)
Now it would appear the shoe is on the other foot for Gen. Flynn, one of Trump's closest confidantes. Your move, Senate Intel Committee.