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Michael Flynn Gets Another Chance From Intelligence Committee

Panel seems ready to hold him in contempt of Congress

Senate Intelligence Chairman Richard Burr, R-N.C., and Vice Chairman Mark Warner, D-Va., want to give Michael Flynn one more chance to cooperate with their probe. (Bill Clark/CQ Roll Call)
Senate Intelligence Chairman Richard Burr, R-N.C., and Vice Chairman Mark Warner, D-Va., want to give Michael Flynn one more chance to cooperate with their probe. (Bill Clark/CQ Roll Call)

The Senate Intelligence Committee is giving former national security adviser Michael Flynn another chance to produce documents about his interactions with Russian officials, even as the panel’s leaders are sending signals that they are unafraid to hold him in contempt of Congress.

The committee leadership has now sent a letter questioning the claim by Flynn and his lawyers that he can use the Fifth Amendment’s protection against self-incrimination to avoid producing documents subpoenaed by the panel.

Intelligence Chairman Richard M. Burr said a contempt citation could be a possibility down the road.

“Everything is on the table,” the North Carolina Republican told reporters. “That’s not our preference today.” 

“We’ve issued two subpoenas to two Michael Flynn businesses that we’re aware of,” said Vice Chairman Mark Warner, a Virginia Democrat. “While we disagree with Gen. Flynn’s lawyer’s interpretation of taking the Fifth … it is even more clear that a business does not have a right to take [the] Fifth because it’s a corporation.”

Burr and Warner said they received formal notification Monday that Flynn would neither consent to an interview nor comply with a committee subpoena for document production.

Asked Tuesday if the Intelligence Committee should call Flynn in to testify, knowing that the former national security adviser would refuse to answer questions citing the Fifth Amendment protections, Senate Minority Leader Charles E. Schumer signaled he should.

The New York Democrat went a step further, suggesting, as Burr did, that Flynn has no right to decline to turn over paperwork to the Senate investigators.

“He ought to comply with their request for documents. There is no immunity from — or Fifth Amendment rights — when it comes to documents, and therefore he ought to send those over,” Schumer said.

Schumer said he did not want to get ahead of the committees and prejudge what might happen if Flynn continues to not comply.

“We’ll leave that up to the committees, but he should comply and there will be consequences if he doesn’t,” the minority leader said.

Continued noncompliance by Flynn could lead to a test of the Senate’s power to compel document production. One remedy available may be a resolution to hold Flynn in civil contempt of Congress.

That process, which would require adoption on the floor, would grant Senate lawyers authority to bring a lawsuit demanding Flynn produce the documents. That was the approach taken by the Permanent Subcommittee on Investigations of the Homeland Security and Governmental Affairs Committee in dealing with the website Backpage.com.

The Backpage case marked the first time in two decades that the Senate enforced compliance with a subpoena through the federal judiciary, and a comment from Sen. John McCain during that process may prove prescient.

“If allowed to go unresponded to, then why shouldn’t anybody just refuse to testify?” the Arizona Republican asked at the time.

Senate lawyers brought civil legal action to enforce the subpoena against Backpage, which was the home to classified ads that facilitated child exploitation. The Supreme Court, in a one-page order, declined to stop the subpoena from being enforced.

The latest Senate action related to Flynn came after former CIA Director John O. Brennan told the House Intelligence Committee of concerns he had about contacts between Trump campaign associates and Russia.

“Frequently, individuals who go along a treasonous path do not even realize they’re along that path until it gets to be a bit too late,” Brennan said. “My radar goes up early when I see certain things that I know what the Russians are trying to do, and I don’t know whether or not the targets of their efforts are as mindful of the Russian intentions as they need to be.”

Brennan also recalled an Aug. 4, 2016, conversation with Alexander Bortnikov, the head of Russia’s FSB security agency, about reports of possible active measures against the U.S. elections.

“I told Mr. Bortnikov that if Russia had such a campaign underway, it would be certain to backfire,” Brennan said. “I said that all Americans, regardless of political affiliation or whom they might support in the election, cherish their ability to elect their own leaders without outside interference or disruption.”

Joe Williams contributed to this report.