Posted on 05/22/2017 11:26:22 AM PDT by SeekAndFind
After a short, merciful weekend break from TrumpRussia 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. Wouldnt an innocent patriot in Flynns shoes want to tell the world his side of the story? Wouldnt he want to clear his name?
Its 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 dont have any idea whether Flynn has violated criminal laws, and his decision to plead the fifth does not in any way indicate that hes guilty of a crime. Instead, hes behaving exactly as a prudent citizen embroiled in a federal investigation should behave. There is a reason beyond our nations respect for constitutional rights why a defendants decision to assert the Fifth Amendment is inadmissible in criminal trials: It simply isnt 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, its 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 governments securities-fraud charge before Stewarts trial. Similarly, in 2007 prosecutors convicted Scooter Libby of lying to the FBI and obstructing an investigation into the leak of CIA employee Valerie Plames 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 Flynns position, and thus they often give clients a simple instruction: Dont 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 theyll lie not because theyre guilty but because theyre panicked or afraid that telling the truth will lead to a trial they dont want to risk. And, yes, of course sometimes they lie because theyre 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 Flynns own hypocrisy, noting that he once said, When you are given immunity, that means you probably have committed a crime.
The Intelligence Committee denied Flynns request, calling it wildly preliminary. From that point forward, Flynns 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 states effort to launch a soft coup against a sitting president, Flynns decision is an admirable display of resolve. He shouldnt trust investigators, and he shouldnt give them anything. Those who are convinced that Trumps campaign team colluded with Russian intelligence operatives to engineer an illegitimate electoral victory see Flynns decision as yet more smoke from a raging fire of conspiracy and treason.
In reality, the sole conclusion that should be drawn from Flynns decision is that he has a shrewd legal team, and hes taking their advice. The ball is now in the Intelligence Committees court. Will it grant him immunity? Will it drop the matter (for now) and defer to special counsel Robert Muellers investigation? As frustrating as it is for a public thats desperate to see the Russia investigations come to a definitive end, the answer today is the same as it is most days: We dont know anything truly new, speculation isnt evidence, and the wait continues.
David French is a senior writer for National Review, a senior fellow at the National Review Institute, and an attorney.
Good for him.
Yeah, I would probably want to skip that kangaroo court too. Dems are out for political kills.
What if they gave a Show Trial and nobody came?
(Rod McKuen’s “poetry” made my skin crawl, but this fits the situation all too well).
For later....
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