Michael Flynn, President Trump's former national security adviser, will invoke his Fifth Amendment right in the ongoing investigation into the Trump campaign's ties to Russia, The Associated Press reported on Monday. The phrase is thrown around a lot, but it's important to understand what the Fifth Amendment actually says and when it's applicable.
Flynn is at the center of the federal probe into the Trump administration's ties to Russia: He resigned as Trump's national security adviser back in February after it came to light that he misled Vice President Mike Pence about conversations he had with the Russian ambassador before President Trump took office. The Justice Department has been looking into Flynn since before the new administration began, as The New York Times reported he disclosed to Trump's transition team that he was under federal investigation. However, Trump hired him anyway.
Now, Congress is also investigating and demanding more information from Flynn regarding his dealings with Russia, but he's invoking his Fifth Amendment right. Let's look at what that means for him and the overall Trump-Russia investigation.
What does the Fifth Amendment say?
This amendment dictates a few rights for those accused of a crime, including that you can't be forced to serve as a witness against yourself. When someone is arrested, there are a set of Miranda rights cops must relay, including that the suspect has the right to remain silent (i.e. plead the Fifth). People called to witness in a court case can also plead the Fifth if they believe answering the questions posed would incriminate them.
Who else has pled the Fifth before Congress?
People in plenty of high-profile cases have pled the Fifth.
"Pharma bro" Martin Shkreli, the pharmaceutical executive infamous for drastically increasing the price of HIV and cancer drugs, pled the Fifth when called to testify before the House Committee on Oversight and Government Reform last year.
Baseball superstar Mark McGwire also invoked the Fifth Amendment in 2005 when a House committee wanted him and other players to answer questions about the use of steroids in Major League Baseball.
However, these cases share a major difference from Flynn's: They involved testifying before a congressional committee, not handing over documents.
Why did Michael Flynn plead the Fifth?
The Senate Intelligence Committee issued a subpoena May 10 ordering Flynn to hand over personal documents for Congress' investigation into whether there are potential ties between the Trump campaign and Russia. In March, The Washington Post reported Flynn would only cooperate with the congressional committees looking into his relationship with Russia if he was given immunity.
An immunity deal hasn't come through yet, and The Associated Press reported on Monday that Flynn won't give the committee any documents. His letter to Congress cited "escalating public frenzy" as his reasoning, which mimics his lawyers' statement to USA Today in March that said, "No reasonable person, who has the benefit of advice from counsel, would submit to questioning in such a highly politicized, witch-hunt environment without assurances against unfair prosecution."
Does the Fifth Amendment apply in this case?
Because Flynn was given a subpoena for documents, he can't legally plead the Fifth.
Philip Bump of The Washington Post put it this way: "The Fifth Amendment protects you from making incriminatory comments about yourself — but it doesn’t protect you from things you’ve said in the past. Documents are similarly a form of past behavior to which the Fifth Amendment doesn’t apply."
What could happen now?
The Senate could vote on whether or not to hold Flynn in contempt of court for refusing to give the intelligence committee the documents, and if the majority votes "yes," a U.S. attorney could charge Flynn with criminal charges. This would make him the first person from the Trump campaign to be formally charged in relation to the Trump-Russia investigation.