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Flynn to plead Fifth in Russia probe

Chad Day
Associated Press

Washington — President Donald Trump’s former national security adviser, Michael Flynn, invoked his Fifth Amendment right against self-incrimination in rebuffing a subpoena Monday in the investigation into Russia’s election meddling. Then a top House Democrat cited new evidence he said appeared to show Flynn lied on a security clearance background check.

With Trump himself in the Mideast on his first foreign trip as president, investigations into Russian interference in the 2016 campaign — and allegations of Trump campaign collaboration — showed no sign of slackening in Washington. Flynn’s own defensive crouch revealed the high legal stakes he faces as investigations intensify: a U.S. counterintelligence probe of Russia, a federal investigation in Virginia and multiple congressional inquiries.

As well, The Washington Post reported Monday that Trump asked two top intelligence chiefs in March to deny publicly that there had been collusion between the Russians and the Trump campaign.

Citing current and former officials, the Post said the national intelligence director, Daniel Coats, and the director of the National Security Agency, Adm. Michael S. Rogers, both refused Trump’s request, judging it inappropriate. Coats could face questions on the report Tuesday when he is scheduled to testify before the Senate Armed Services Committee.

Flynn’s attorneys told the Senate intelligence committee on Monday that he will not turn over personal documents sought under the congressional subpoena, citing an “escalating public frenzy” against him. They also said the Justice Department’s appointment of a special counsel has created a legally dangerous environment for him to cooperate with the Senate panel’s investigation.

Hours later, Rep. Elijah Cummings, senior Democrat on the House oversight committee, said government documents he’s reviewed showed inconsistencies in Flynn’s disclosures to U.S. investigators in early 2016 during his security clearance review.

Cummings said Flynn appeared to have misled authorities about the source of a $33,000 payment from Russia’s state-sponsored television network, failed to identify foreign officials with whom he met — including Russia’s President Vladimir Putin — and glossed over his firing as chief of the Defense Intelligence Agency during the Obama administration. Cummings made his points in a letter asking the committee’s chairman, Jason Chaffetz of Utah, to subpoena the White House for documents related to Flynn.

It’s unclear from Cummings’ letter whether Flynn would face legal jeopardy for his answers to security clearance investigators. But in an April statement Cummings warned that falsifying or concealing material facts on security clearance reviews are federal crimes and convictions could lead to fines and up to five years imprisonment.

Flynn attorney, Robert Kelner, declined to comment on Cummings’ assertions.

Trump appointed Flynn, a retired U.S. Army lieutenant general and top military intelligence chief, as his top national security aide in January, only to fire him less than a month later. The White House has said that Flynn had misled top U.S. officials, including Vice President Mike Pence, about his contacts with Russian officials, including Russia’s ambassador to the U.S.

Cummings and other Democrats have blasted Trump and his team for failing to more carefully check Flynn’s background before they brought him to the White House, while the Trump administration has attempted to blame the Obama administration for failing to properly vet Flynn earlier.

Cummings said Monday that Flynn provided inconsistent or misleading statements to U.S. security clearance investigators in early 2016 during the renewal of his credentials.

Cummings cited a government report in March 2016 that he said showed the retired Army general telling authorities that payments he received for his 2015 trip to Moscow were paid by “U.S. companies.” In fact, the oversight committee released detailed email and payment records months ago showing that the source of Flynn’s payment of more than $33,000 was RT, the Russian state-sponsored television network that has been labeled a propaganda network by U.S. intelligence.

The payments, which were made through Flynn’s U.S.-based speakers bureau, stemmed from Flynn’s trip to Moscow to appear at an RT gala, where he sat at the head table with Putin.

In his letter, Cummings also cited a standard security clearance question that asks respondents to disclose contacts with foreign governments or their representatives. According to Cummings, Flynn told investigators he had only “insubstantial contact” with foreign nationals over the previous seven years and he did not detail the names of any foreign officials he had met. Among those omitted were Putin, RT officials and Russian military intelligence officials whom Flynn had met in Moscow in 2013 as part of his duties as defense intelligence chief.

Cummings said he found it difficult to understand how Flynn could have characterized his dinner with Putin as “insubstantial contact.”

“General Flynn had a duty to be truthful in his security clearance renewal form and during his interview with security clearance investigators,” Cummings wrote, noting that he’s been in contact with the Justice Department and the newly appointed special counsel about his findings.

Meanwhile, the Senate committee’s subpoena to Flynn focused on his interactions with Russian officials. It sought a wide range of information and documents about his and the Trump campaign’s contacts with Russians dating back to June 2015.

Flynn’s response stressed that his decision to invoke his constitutional protection was not an admission of wrongdoing but rather a response to a political climate in which Democratic members of Congress are calling for his prosecution. The attorneys also said that if Flynn complied with the committee’s request, he could be confirming the existence of documents, an act that itself could be used against him.

Trump has defended Flynn since his ouster and called on him to strike an immunity deal because Flynn was facing a “witch hunt.” The president’s comments were in stark contrast to his harsh words during the 2016 campaign for people who received immunity or invoked the Fifth Amendment in the probe of Hillary Clinton’s use of a private email server.

“If you’re innocent, why are you taking the Fifth Amendment?” Trump asked in a campaign rally in Iowa in September.

Trump himself walked back into the Russia controversy during his visit to Israel, volunteering that he “never mentioned the word or the name Israel” during his recent Oval Office conversation with top Russian diplomats.

That comment referred to revelations that he divulged classified information about an Islamic State threat in his May 10 meeting in the Oval Office with Russia’s foreign minister and ambassador. U.S. officials have said the information originated with Israel. However, it has not been alleged that Trump told the Russians that Israel was the source.

Flynn’s decision does not fully close the door on future cooperation with the committee. But if congressional committees move to grant Flynn immunity, they would probably have to enter into discussions with the special counsel, Robert Mueller, to determine whether that could impede the FBI’s case.

A look at Fifth Amendment protections invoked by Flynn

The Fifth Amendment right against self-incrimination being invoked by President Donald Trump’s former national security adviser, Michael Flynn, is a bedrock legal principle. It’s enshrined in the Constitution’s Bill of Rights and relied on by witnesses before Congress and the courts alike.

A look at those protections and elements of the Flynn case:

NO SELF-INCRIMINATION

The amendment provides numerous legal protections for defendants, including the right to have evidence presented to a grand jury. But the best-known provision is one that shields a witness from self-incrimination. Witnesses have invoked it in order to avoid testifying against themselves, or to avoid being forced to produce documents that could be used against them.

NOT AN ADMISSION OF GUILT

Invoking the Fifth Amendment does not mean that a witness is guilty of any crime or even has anything to hide. Instead, it can reflect a witness’s concern that any testimony given would be interpreted in an unfavorable way, or that it could be used as evidence in a prosecution. Ironically, both Flynn and Trump pointed to invoking the Fifth Amendment as a sign of guilt during the Hillary Clinton email investigation.

IN FLYNN’S CASE

Flynn is refusing to provide documents to a Senate committee investigating Russian interference in the 2016 presidential election. A subpoena from the Senate intelligence committee requests a list of all contacts between Flynn and Russian officials over an 18-month period. In a letter to the committee Monday, lawyers for Flynn say that he is not admitting wrongdoing but is looking to protect himself from an “escalating public frenzy” of “outrageous allegations.”

A PROBLEM FOR INVESTIGATORS

The committee’s investigation could be hampered by Flynn’s decision to invoke the Fifth Amendment, but lawmakers could try to get some documents on their own or get information they want from another witness. The committee also could file a claim in federal court to try to force Flynn to testify and produce documents, but that could take months.

WHAT ABOUT IMMUNITY?

The committee could offer Flynn immunity in exchange for his testimony, but that could complicate any subsequent Justice Department criminal prosecution. The FBI would not be able to use the immunized testimony, or evidence derived from it, to build a case, though a witness can still be prosecuted for false statements or for evidence of other crimes. The committee would have to alert the attorney general before making such an offer.