On May 22, former national-security adviser Michael Flynn chose to plead the Fifth Amendment in response to a subpoena from the Senate Intelligence Committee (SIC). The subpoena called on Flynn to supply documents related to his involvement with Russian officials within the past two years.
The case raises a number of political questions, many of which are not yet answerable. But there is one logistical question that can be explained: What does it really mean to plead the Fifth?
Invoking your Fifth Amendment right, as outlined by the US Constitution, can pertain to a number of circumstances, including being prosecuted for the same crime twice (“double jeopardy”) and self-incrimination.
Flynn is pleading the Fifth for the latter. The SIC is asking him to participate in what could become – if the documents contain incriminating information – Flynn’s own legal demise. He has a constitutional right to avoid such a scenario before any trial.
This holds true for ordinary civil and criminal cases, which are tried by juries, and special investigations, like this one carried out by the SIC. “You can’t be compelled in any context in which the evidence, if produced, could eventually be used against you in a criminal case,” Georgetown University law professor Julie O’Sullivan told USA Today.
But the SIC could try to claim the documents must be handed over under the “forgone-conclusion doctrine,” O’Sullivan says. Basically, the Supreme Court has the power to request documents it knows to exist – in this case, conversation logs between Flynn and the Russian ambassadors, among any others.
There’s a great deal of precedence for pleading the Fifth. One landmark case came in 1968, in Haynes v. United States, in which the Supreme Court ruled it unconstitutional to require felons to register their firearms. Since it’s illegal for felons to own firearms in the first place, requiring them to register them would be a form of self-incrimination.
Flynn was Trump’s pick for national-security adviser, and he resigned from that position on February 13 after news broke that he had misled Vice President Mike Pence about his broader dealings with the Russian ambassador to the US.
One of the paradoxes with pleading the Fifth is that doing so tends to raise suspicions of guilt anyway, since it’s assumed innocent people should have nothing to hide. President Trump has said as much in the past.
“The mob takes the Fifth Amendment,” Trump said at a rally in Iowa. “If you’re innocent, why are you taking the Fifth Amendment?”
The next step for the Senate is deciding whether to hold Flynn in contempt for refusing to hand over the documents. If it does, the matter would head to a civil court in which a judge would decide whether Flynn’s Fifth Amendment right applies in this case. Republicans have an obvious incentive to fight this transition, but the same paradox would quickly apply.
The longer Flynn’s case gets dragged out, the worse it begins to look – unless, of course, it turns out the documents contain nothing of value.