After a short, merciful weekend break from Trump–Russia scoops, the Associated Press reported this morning that Michael Flynn will decline a subpoena from the Senate Intelligence Committee, invoking his Fifth Amendment right against self-incrimination.
Already, Twitter is exploding with assertions that this “probably” means Flynn is guilty. Wouldn’t an innocent patriot in Flynn’s shoes want to tell the world his side of the story? Wouldn’t he want to clear his name?
It’s tempting to think that only a man with something to hide refuses to testify — especially on a matter of national importance. But in this case, it would be unfair to Flynn. We don’t have any idea whether Flynn has violated criminal laws, and his decision to plead the fifth does not in any way indicate that he’s guilty of a crime. Instead, he’s behaving exactly as a prudent citizen embroiled in a federal investigation should behave. There is a reason beyond our nation’s respect for constitutional rights why a defendant’s decision to assert the Fifth Amendment is inadmissible in criminal trials: It simply isn’t a reliable indicator of guilt.
To understand why, you have to understand a core truth that I discussed with criminal-defense attorney (and former federal prosecutor) Ken White on my last podcast. Federal investigations are extremely perilous even for those targets innocent of the crimes being investigated. In fact, it’s common for investigators to indict or convict the targets of their investigations for misconduct during the investigation, rather than for the alleged crimes that sparked their inquiries to begin with.
Just ask Martha Stewart. In 2004, a jury found her guilty of obstructing an investigation into her sale of stock in a company called ImClone Systems, Inc. The judge dismissed the government’s securities-fraud charge before Stewart’s trial. Similarly, in 2007 prosecutors convicted Scooter Libby of lying to the FBI and obstructing an investigation into the leak of CIA employee Valerie Plame’s identity to journalist Robert Novak. In the so-called “Plame Affair,” no one was ever convicted of a crime for the leak itself.
Intelligent lawyers understand the peril faced by a man in Flynn’s position, and thus they often give clients a simple instruction: Don’t cooperate without immunity. Innocent people can find themselves under incredible pressure. Investigators ask questions that are calculated to trap witnesses in apparent lies. Witnesses make mistakes. Sometimes they’ll lie not because they’re guilty but because they’re panicked or afraid that telling the truth will lead to a trial they don’t want to risk. And, yes, of course sometimes they lie because they’re guilty of the underlying offense. In any case, unconditional cooperation is extraordinarily dangerous.
In March, Flynn did the intelligent thing and asked the Senate Intelligence Committee for immunity in exchange for his testimony. Then as now, Twitter exploded with speculation that Flynn only made the request because he was guilty. Then as now, Twitter gleefully pointed out Flynn’s own hypocrisy, noting that he once said, “When you are given immunity, that means you probably have committed a crime.”
The Intelligence Committee denied Flynn’s request, calling it “wildly preliminary.” From that point forward, Flynn’s decision was remarkably simple. Every sentient lawyer in America would give him the same advice: If the committee denies you immunity, then you must deny them your testimony. Any other decision would be shockingly reckless.
To those who see the Russia controversy as nothing less than the “deep state’s” effort to launch a “soft coup” against a sitting president, Flynn’s decision is an admirable display of resolve. He shouldn’t trust investigators, and he shouldn’t give them anything. Those who are convinced that Trump’s campaign team colluded with Russian intelligence operatives to engineer an illegitimate electoral victory see Flynn’s decision as yet more smoke from a raging fire of conspiracy and treason.
In reality, the sole conclusion that should be drawn from Flynn’s decision is that he has a shrewd legal team, and he’s taking their advice. The ball is now in the Intelligence Committee’s court. Will it grant him immunity? Will it drop the matter (for now) and defer to special counsel Robert Mueller’s investigation? As frustrating as it is for a public that’s desperate to see the Russia investigations come to a definitive end, the answer today is the same as it is most days: We don’t know anything truly new, speculation isn’t evidence, and the wait continues.