Retired Lt. Gen. Michael Flynn, the former national security adviser under President Trump, will not comply with a Senate Intelligence Committee subpoena for documents related to its probe of Russian meddling in the 2016 elections, invoking the Fifth Amendment and his right against self-incrimination.
Flynn’s decision, which his attorneys announced in a letter sent Monday to committee chairman Richard Burr (R-N.C.) and vice chairman Mark R. Warner (D-Va.), comes as evidence continues to mount elsewhere in Congress that the former national security adviser has misrepresented his Russia ties.
Rep. Elijah Cummings (Md.), the top Democrat on the House Oversight and Government Reform Committee, sent a letter Monday to the panel’s chairman, Rep. Jason Chaffetz (R-Utah), citing documents “in our possession. . . that appear to indicate that General Flynn lied to the investigators who interviewed him in 2016 as part of his security clearance renewal” about income he made from a December 2015 speaking engagement at a gala hosted by the Russian state-owned media company RT.
Cummings cited a previously undisclosed March 14, 2016, Report of Investigation showing Flynn “told security clearance investigators that he was paid by ‘U.S. companies’ when he traveled to Moscow” for that gala and that Flynn told investigators that “he has not received any benefit from a foreign country.”
But payment vouchers and other documents showed that Russia had “directly” paid for Flynn’s airfare, accommodations and other expenses.
In addition to the RT payments, Flynn has come under scrutiny for collecting more than $500,000 for lobbying work on behalf of Turkish interests.
The Cummings letter referenced the Report of Investigation to impress upon Chaffetz why they want him to issue subpoenas against various White House officials, to learn what “top officials knew about General Flynn — and when they knew it.”
The appeal to Chaffetz came on the same day that Flynn’s attorneys informed the Senate Intelligence Committee that he would not comply with its subpoena for documents.
“The context in which the Committee has called for General Flynn’s testimonial production of documents makes it clear that he has more than a reasonable apprehension that any testimony he provides could be used against him,” Flynn’s attorneys wrote in their letter to Burr and Warner.
The committee wanted Flynn to produce any records of conversations he had with Russian officials between June 16, 2015, and Jan. 20, 2017, and to compile a list of any contacts he had with Russian officials.
Flynn was forced to resign as national security adviser in February after it emerged that he had not been fully forthcoming with Vice President Pence about conversations he had with Sergey Kislyak, the Russian ambassador to the United States.
The committee issued a subpoena this month for documents listing those and other communications with Russian officials from Flynn after he failed to voluntarily produce records of such contacts. It is the only subpoena the committee has issued in the course of its investigation into Russian involvement in the 2016 elections, a probe that includes delving into any contacts the Trump campaign and transition teams may have had with Kremlin officials.
While the Fifth Amendment is commonly applied to giving testimony, Flynn’s attorneys argued that by creating or handing over the documents the committee had requested, their client would essentially be giving testimony about the existence of those conversations and, thus, potentially incriminating himself.
“Producing documents that fall within the subpoena’s broad scope would be a testimonial act, insofar as it would confirm or deny the existence of such documents,” they wrote.
In the letter, they also cited the Justice Department’s recent appointment of Robert S. Mueller III as special counsel for the Russia investigation, arguing that it creates new dangers for Flynn and gives “rise to a constitutional right not to testify.”
Flynn has offered “to give a full account,” his attorneys wrote in Monday’s letter, but only if he receives “assurances against unfair prosecution” — in other words, immunity. The committee has not offered Flynn immunity in exchange for his testimony to the committee.
Flynn’s attorneys also strongly hinted that they think the congressional committees would be biased against Flynn if he complied with the request.
“Multiple Members of Congress have demanded that he be investigated and even prosecuted,” Flynn attorneys Robert K. Kelner, Stephen P. Anthony and Brian D. Smith wrote in their letter. “He is the target on nearly a daily basis of outrageous allegations, often attributed to anonymous sources in Congress or elsewhere in the United States Government, which, however fanciful on their face and unsubstantiated by evidence, feed the escalating public frenzy against him.”
In a statement, Warner and Burr said they were “disappointed” by Flynn’s decision to invoke the Fifth Amendment but promised to “vigorously pursue General Flynn’s testimony and his production of any and all pertinent materials pursuant to the Committee’s authorities.”
Matea Gold contributed to this report.