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Speaker 1: Donald Trump's former national security advisor, Michael Flynn, is refusing

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Speaker 1: to turn over documents being sought by a Senate committee

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Speaker 1: investigating Russian interference in last year's election. In a letter

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Speaker 1: to lawmakers, Flynn's lawyers said he was invoking the Constitution's

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Speaker 1: Fifth Amendment, which says no one has to be a

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Speaker 1: quote witness against himself in a criminal case. With us

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Speaker 1: to talk about the letter and its implications is Timothy Edgar.

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Speaker 1: He's the academic director for Law and Policy at Brown

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Speaker 1: University's Executive Master and Cybersecurity Program. Tim, thanks for joining us. UM.

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Speaker 1: What are these documents that that the Senate is requesting

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Speaker 1: from Michael Flynn. Well, they're requesting a number of documents,

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Speaker 1: including emails and other documents they think would be relevant

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Speaker 1: to the investigation. UM, and they're requesting them from Michael Flynn,

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Speaker 1: as you said, the former national security advisor. UM. And

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Speaker 1: you know this is this is a an area where

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Speaker 1: there UM, the Flynn's lawyers are going to have a

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Speaker 1: hard time invoking the Fifth Amendment because there's really no

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Speaker 1: protection at the Fifth Amendment applies to documents. But there's

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Speaker 1: kind of an exception to that. We can get to

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Speaker 1: in a second if you want. Yeah, let's just let

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Speaker 1: let's go ahead and dive into that. Was there my

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Speaker 1: next question? Normally, at least uh, certainly non lawyers probably

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Speaker 1: think about the Fifth Amendment right as being something that

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Speaker 1: involves you saying something out loud and that that might

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Speaker 1: be self incriminating. How how is it a document is

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Speaker 1: arguably is arguably something that's protected under the Fifth Amendment? Right? Well, well,

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Speaker 1: the documents themselves pretty much never would be protected by

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Speaker 1: the Fifth Amendment because they weren't produced under any compulsion. Um.

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Speaker 1: You know, he produced correspondence, emails, memos whenever he did. Uh,

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Speaker 1: he did on his own volition. So that's not protected

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Speaker 1: by the Fifth Amendment. But um, the act of production maybe,

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Speaker 1: and that all depends on whether by producing these documents

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Speaker 1: he is essentially commuting communicating something that he knows that

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Speaker 1: could incriminate him. Uh. Let me give you a very

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Speaker 1: straightforward example. Um, you know, if if somebody suspected me

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Speaker 1: of making a pact with the devil, you know, with

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Speaker 1: my blood and in on parchment. Um, and they said

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Speaker 1: to me, produced the pact with the devil? And I said,

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Speaker 1: you know, well, I I if I produce it, then

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Speaker 1: I prove that I have one right. So it's kind

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Speaker 1: of the same thing with these sorts of documents. Um.

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Speaker 1: If in the fact that he goes through and identifies

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Speaker 1: them and produces them to the committee shows the committee

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Speaker 1: something it doesn't already know, Um, you know something about

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Speaker 1: his knowledge of where these documents are or the fact

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Speaker 1: that they exist. Uh, then that's really testimony. And the

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Speaker 1: courts have basically said you can't get around the Fifth

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Speaker 1: Amendment by subpoenaing documents that way. So I'm looking at

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Speaker 1: the letter and and they his lawyers talk about a

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Speaker 1: Supreme Court case um from night from Let's see what

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Speaker 1: is it? Well, involving Webster Hubble Hubble. It is called

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Speaker 1: United States versus Hubble. And essentially what the argument they're

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Speaker 1: making is that case and others established that if there

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Speaker 1: are specific documents that investigators can identify that exist, then

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Speaker 1: those they can expect those to be turned over. But

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Speaker 1: in a case like this, where it's more of a

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Speaker 1: phishing expedition where they say, give us everything you have

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Speaker 1: about contacts with the Russian government. Uh, that uh, that

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Speaker 1: is uh testimonial in terms of that that act of production.

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Speaker 1: The way you're you're you're what you were talking about?

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Speaker 1: What's wrong with that argument? Well, I I think that's a,

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Speaker 1: you know, a good argument on its face. The question

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Speaker 1: is whether the documents that they've identified in the letter

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Speaker 1: they're seeking from Flynn are specific enough or not, or

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Speaker 1: whether they meet that Webster Hubble test um. And this

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Speaker 1: gets also into another big question, which is who decides

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Speaker 1: the answer spect question? Right? I mean, um, you know,

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Speaker 1: let's say Flynn persists and says, you know, I'm not

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Speaker 1: going to produce you these documents. Um. Yeah, there's there's

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Speaker 1: a whole bunch of steps that the Congress is going

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Speaker 1: to have to go through, uh if if they want

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Speaker 1: to get a judicial ruling on whether he's entitled to um,

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Speaker 1: you know, to to uh invoke the Fifth Amendment or not.

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Speaker 1: Can you walk us through those what happens next time?

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Speaker 1: I mean, this is this is really I think one

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Speaker 1: of the reasons that congressional investigations can often take a

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Speaker 1: very long time. Um. If Flynn decides to stand his

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Speaker 1: ground and not to hand over documents based on that

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Speaker 1: letter his his lawyers provided, um, then the committee is

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Speaker 1: going to have to find him in contempt um of Congress.

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Speaker 1: And it's not not just the committee itself. They'll have

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Speaker 1: to refer that to the entire um, to the entire

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Speaker 1: body for a vote. UM. And assuming they get a vote,

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Speaker 1: which is certainly not um, you know, not a foregone conclusion,

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Speaker 1: given how partisan this investigation has become u UM, then

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Speaker 1: they would have to refer that to really one of

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Speaker 1: two processes they could They could refer it to the

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Speaker 1: Justice Department for prosecution under a criminal contempt statute, where

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Speaker 1: they could seek to enforce the subpoena through a civil

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Speaker 1: UH litigation, essentially through a lawsuit against Flynn. And in

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Speaker 1: either of those cases, Flynn's claim that he has a

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Speaker 1: Fifth Amendment right not to produce the documents would then

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Speaker 1: go before a judge to be litigated. But obviously that

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Speaker 1: whole process would probably take many months to work itself through,

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Speaker 1: and typically in these cases, what you find instead is

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Speaker 1: that the lawyers for the witness and for the committee

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Speaker 1: get together in order to try to narrow the request

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Speaker 1: UH and come to some kind of resolution. But it's

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Speaker 1: not clear what the resolution would be here with Flynn, UH,

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Speaker 1: just because the General Flynn is in a lot of

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Speaker 1: criminal you know, hot water right now, and his lawyers

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Speaker 1: are not going to want to take any action that

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Speaker 1: jeopardize um him in any way. Uh, They're gonna want

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Speaker 1: to play their cards pretty close to the vest until

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Speaker 1: they've gotten some sort of resolution from the Justice Department. Yeah.

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Speaker 1: I guess the one thing that the Sena could do

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Speaker 1: would be to offer immunity, which is what he has

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Speaker 1: been seeking. Does that seem like a realistic avenue to you. Uh, well,

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Speaker 1: it's certainly what Flynn wants, and it's realistic if the

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Speaker 1: Congress decides that what they care about is getting the

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Speaker 1: answers to their questions without regard to how it screws

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Speaker 1: up the criminal case against Flynn. Um, they're very unlikely

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Speaker 1: to do that, I would say. Um. The last time

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Speaker 1: that we had a really dramatic example of Congress giving

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Speaker 1: and witness immunity in order to get that information out

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Speaker 1: before the public was in the Oliver North case back

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Speaker 1: in the nineteen eighties, UM, where essentially Congress was so

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Speaker 1: eager to uh, you know, air that Iran contra scandal

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Speaker 1: before the public, that they went ahead and grant a

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Speaker 1: kind of the star witness Oliver North, pretty pretty broad immunity. UM.

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Speaker 1: But the result of that was to basically doom the

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Speaker 1: criminical criminal case against him, UM and so UM. Ever

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Speaker 1: since then, you know, it's been sort of conventional wisdom

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Speaker 1: among most members of Congress and staff that you don't

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Speaker 1: want to do that. You don't want to give immunity

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Speaker 1: to witnesses that might be facing serious criminal problems that

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Speaker 1: you want to first let um in this case, it

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Speaker 1: will be Bob Mueller handle that part of the investigation. Well,

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Speaker 1: I think it would be Mobbler. That's actually a good question.

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Speaker 1: But you want the Justice Department, essentially to UH to

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Speaker 1: handle all of that, and then if they come to

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Speaker 1: a resolution, then you might get the testimony of that

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Speaker 1: witness UM in cooperation with the prosecutors. Tim, we're gonna

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Speaker 1: have to leave it there. I'll ask you that Bob

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Speaker 1: Muller questioned. The next time, that was Tim Timothy Edgary's

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Speaker 1: with Brown University, talking about Michael Flynn invoking the fil

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Speaker 1: Amendment