Constitutional Law, Criminal law, Media, Politics, Uncategorized

Does Congress Have Any Options After Flynn Takes The Fifth? You Bet.

440px-Michael_T_FlynnThere has been a chorus of commentators saying that the invocation of the Fifth Amendment by former national security advisor Michael Flynn leaves only immunity as the unlikely option for Congress. This was stated repeatedly on CNN last night.  (I was supposed to go on Anderson Cooper and I was going to correct that view but the terrible massacre in England obviously took priority in coverage).  The fact is that there is an obvious option: move to hold Flynn in contempt.  The case law is not a clear cut as commentators have suggested on the “act of production doctrine.”  Moreover, Congress has an institutional interest in pushing back on such invocations if it does not view the production as testimonial.

It is certainly true, as have bee stated, that the act of production of documents has been found to be testimonial in nature. However, the claim is not absolute and can be validly asserted. The only way to review the assertion would be as part of a contempt proceeding.  It would depend if the assertion is closer to the 1976 case of Fisher v. United States or 2000 case of United States v. Hubbell.

The act of production doctrine was largely defined in Fisher where it was rejected as part of an IRS case seeking documents from two taxpayers through a demand to their accountants/lawyers.  The documents were already known to the IRS and the securing of the documents was viewed as a “foregone conclusion.”  It is not enough that the documents are incriminating. They must be compelled as a testimonial matter in their production.

Flynn would argue that the issue comes closer to Hubbell in the Whitewater investigation by Independent Counsel Ken Starr.  The grand jury subpoena duces tecum in that case was sweeping and poorly defined.  He was given immunity to produce the documents under  18 U.S.C. §§ 6002-6003.  The Supreme Court found the production was testimonial because the demand did not meet the required demonstration of  “reasonable particularity” for the documents.

Flynn could be challenged in his assertion by saying that this is not the same type of “fishing expedition” as Hubbell but rather comes closer to the “foregone conclusion” of Fisher.

Thus, Congress could move for contempt and argue Fisher against Flynn.

Flynn’s lawyers were correct in taking this approach for their client but the ultimate success depends on the basis for the invocation.

65 thoughts on “Does Congress Have Any Options After Flynn Takes The Fifth? You Bet.”

    1. Melanie must think her husband is. She can’t even stand to be touched by the dirty pussy grabber.

      1. THE WHOLE DAMNED GOVERNMENT SHOULD BE IN JAIL, IN FACT ALL THE GOVERNMENTS WORLDWIDE SHOULD BE IN JAIL; FURTHERMORE, THEY SHOULD ONLY BE ALLOWED TO HAVE OCCUPATIONS AS JANITORS, AND THIS MAY BE AN INSULT TO JANITORS THAT TO A DAMNED GOOD JOB. SORRY JANITORS WE I LOVE YOU, AND NOT THEM!!!

  4. George, are you finished with Hitler’s book yet? Spoiler alert……He loses.

    1. They are the liberals who employ the “Big Lie” described in Mein Kampf. Why are you prevaricating? How can Hillary be found to have no “intent” and Flynn to have felonious, treasonous “intent?”

  5. Hillary had no “intent” where none was required after

    she colluded with the Russians to “reset” “relations” (i.e. Russian contributions

    to the Clinton Foundation) and gave Putin 20% of uranium production capacity.

    Flynn had no “intent” where “intent” is required.

    Obama, Hillary, Lerner and Rice weaponized, with impunity, the IRS and Intel with the

    “intent” of manipulating elections fraudulently.

    Flynn’s is a “show trail” in a “kangaroo court.”

    The “deep state,” “military/industrial complex,” ruling class shadow government

    does not want the swamp drained.

    A constitutional and objective judicial branch should have already intervened to bring the criminal Obama,

    Hillary, Rice, Lerner et al. cabal to justice and to exonerate the American patriot, General Flynn.

    P.S. O.J. Simpson is innocent, right?

  6. ATTENTION, passengers of the USS Trump yuge icebergs straight ahead. But of course you won’t listen because its fake news in whats left of your minds.

  8. Here’s the collusion with Russia: After the elections – all that RED on the map showing Trump voters (electoral college) was actually RED Russian pixie dust made from Uranium! After the Russkies made it they snuck it into our country via Mexico and sprinkled it all over us while we were sleeping. When we awoke viola! we became Russian controlled Trump supporters. Their conclusion: Trump should be impeached.

    Can’t wait to see what Turley & CNN find when they open the Clinton crime investigations. Oh wait…

    1. They would find it is bs much like your ability to discern fact from fiction.

    1. Yeah, it was a trumped up charge – no pun intended. What would you do if Fox did not issue talking points, think for yourself maybe?

      1. Wait…”issue talking points?” Wasn’t that the erudite intellectual and

        double-beneficiary of affirmative action, Donna Brazile?

    2. Lois Lerner, the agent for Obama in his effort to weaponize the IRS and abuse power.

      Susan Rice, the agent for Obama and star of the “Lie Tour” in the 2012 election, an abuse of power.

      Susan Rice, the agent for Obama and “unmasker extraordinaire” who began the Flynn takedown.

      Seth Rich, the supporter of Bernie Sanders, leaker of DNC e-mail and murder victim.

      Dummie “Blabbermouth” Schultz and DNC officers who

      unceremoniously resigned for election fraud and corruption.

      There is an overabundance of names of the infamous to remember.

      There are so many, we forget most of them.

      The crime and corruption is so great we can’t imagine it.

      It is such a BIG LIE; the lie is so colossal, we can’t NOT believe it.

      1. Lerner and IRS did not treat conservative PACs unfairly and am unaware of one that was injured – name one if you can.

        Rice., uh, Benghazi – give it a rest, it was a Thuglican lie then and remains so?

        Rich, you must be so proud using a family’s grief as a political cudgel. All these people being murdered by Clinton – we could use a bit of that resourcefulness in the WH. Very brave of you, be careful, you may be next.

  10. You take Cooper, Chris Cuomo, Paul Begala, Kimmel, Colbert and the rest of the true haters of “your” party and remember, guilt by association.
    __________________

    Guilt by association?

    What is that even supposed to mean?

    1. It’s a fairly common, and not new, phrase. Where have you been? Oh, I see by your nom de web where you live.
      Never mind.

        1. Actually, Ynot, my opinions matter a great deal to me.
          Yours, on the other hand…

  11. But Lois Lerner’s invocation of the 5th was perfectly fine? I just can’t keep up.

    1. Her’s was a utilitarian cause; therefore perfectly acceptable to abuse the rights of citizens AND still enjoy her 5th amendment protections. Makes perfect sense.

  12. Why you would go on CNN and especially Cooper’s spot is beyond belief. Were you going to rebuke him for his “TURD ON THE DESK” remark too?

    I cruise there occasionally, in the vain hope of some pure news. Last night once and again this morning. Here is a perfect example of what is so sadly wrong with them (and others).

    Ask yourself what’s in the news right now? The UK and the Presidents trip right. What was CNN doing during my two random visits…..(placing my hand on the bible) Both times it was the Comey memo. Are you kidding me.

    You take Cooper, Chris Cuomo, Paul Begala, Kimmel, Colbert and the rest of the true haters of “your” party and remember, guilt by association.

  13. Pingback: Law Professor: Congress Could Still Get Past Flynn’s Fifth Amendment Claim Without Granting Immunity - Daily Callout

    1. I don’t trust a guy (Schindler) who’s best known for sending pictures of his private parts to random young girls on the web. Same thing with that Weiner character.

  17. The MUCH needed cuts to the bloated govt. peoposed by Trump will take some heat away from this faux scandal and create a real debate. It will also show who are the Rhino’s,

    1. Trump wants to bloat the military for his war against Iran while starving the citizens.

      1. REJECTED for lack of basis on both subjects. Which leaves only an unproven therefore false premise. generated by personal opinion

        1. Unproven and therefore FALSE?

          Logic isn’t your strong point, is it?

          Oh… sorry… you’re pretending you’re a lawyer… or something…

      2. Just so readers know my true intent. If I had the power to do so, I’d cut the military budget about 90%, and I’d do it the first day possible. There would be little to no so-called “standing military.” The prime, terrible purpose of the current standing military appears to be to make enemies for me and all US citizens around the globe. Congress alone would be the source of all or most military actions, as the founders intended. War would be a four letter word, and required reading would include Buchanan’s seminal, “Churchill, Hitler, and the Unnecessary War (How Britain Lost Its Empire and the West Lost the World).

        That said, from my reading, since the 70s, Federal so-called “safety net” spending is about 2.5x higher as a ratio of GDP. At the current trend, in about twenty five years, mandated Federal safety net spending equals all Federal revenue except for debt interest payments. That means no money left for any other purpose including military, etc.

        The point being that there is a looming debt problem, which appears to exist whether military spending travels its current trajectory or disappears to zero.

        Currently the US spends about 37% of GDP on mandated safety net programs. As a ratio of all spending, mandatory safety net spending increases faster than all other spending combined. Q: Should safety net spending have some mandatory limit <100% as a ratio of all revenue, or rather should there be absolutely no such limit (IOW, any ratio over 100% of all revenue is permissible)? If the former, what should be the limit?

        1. Joseph Jones thank for hitting the nail with the hammer in one try.

        2. I agree. Ike gave us the warning on his last day in office. Beware of the Military Industrial Complex.
          Of course the Republicans always blasted Democrats for “being soft on Communism” so Kennedy and LBJ had to get us into Vietnam. We have been at war since then and will continue to do so until the people get smart. That was the name of a TV show: Get Smart.
          Americans think that their itShay don’t stink. It does. Pull out now like your fathers should have.

      3. Francesca, Come on! You’re supposed to say, “Starving the children.”

    2. Take the money from the bureaucrats and put it the hands of the Saudi princes and Prince Jared.

      1. Francesca, I am in favor of doing away w/ bureaucrats and just giving poor a stipend. I’m serious about this. They can spend it as they please. It will help the liquor and fast food industries.

  18. This whole thing has gone beyond Monty Python territory. It just keeps gobbling up budget and resources, providing ZERO benefit to the rest of the country. A little of this Democratic outrage would have done some good in 2009. ???? Time to saw that diamond-shaped land mass off and drag it down the Chesapeake and into the Atlantic, and send it to the bottom with the rest of the bottom feeders.

  19. One question is: Was Flynn a “foreign agent” ? And by agent: agent of a government or a foreign corporation or foreign cathouse?
    Let us assume that Russia through its KGB paid him money to inform them about American secrets. Then he is a secret agent and needs to be prosecuted for that.
    The real outcome of all this will be that no American can speak to foreign people.

    1. I would presume that Flynn’s conversations did not involve just the weather or the grandkids ……

      1. What percentage of those in DC acting as foreign agents for Israel are registered? Probably a small % of total, depending on how you define “foreign agent.” Likely the same applies to China.

  20. I’m not clear why Flynn was being called to testify. It’s already known that he did not register as a foreign agent and that he had lied to the VP at some point. What other crime is he alleged to have committed?

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