Former national security adviser Michael Flynn’s reticence to testify before Congress about his behavior before and after the inauguration of Donald Trump was always obvious. His attorney indicated that Flynn would testify in exchange for immunity back in March — a ploy that seemed designed to muck up any external criminal investigation of Flynn. Such an investigation has since been reported, with subpoenas issued by the U.S. Attorney’s office in Northern Virginia for records related to Flynn’s business.
On Monday, the Associated Press reported that Flynn would not comply with a similar subpoena issued by the Senate, prompting an obvious question: Is he allowed to ignore that request?
The answer is yes, in the sense that you can also refuse to comply with an order from a police officer. That is, he can refuse — but there will likely be consequences.
Todd Bussert, a federal criminal defense attorney in Connecticut, spoke with The Post by phone Monday to explain what might happen in response to Flynn’s refusal to turn over the requested documents.
The Fifth Amendment “doesn’t have the same level of protection” when it comes to documents, Bussert said.
“Congressional action is analogous to what you see in a criminal context,” Bussert said. “What you often see is the U.S. attorney’s office or law enforcement agencies working with the U.S. attorney’s office coming in and gathering documents from a company or an individual. They may have valid Fifth Amendment claims — they couldn’t be compelled to speak to agents or what have you — but they can’t refuse to comply with the subpoena for documents….