Senate panel offers Flynn another chance to comply

WASHINGTON — 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 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, a North Carolina Republican, said that a contempt citation could be a possibility down the road.

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

“We’ve issued two subpoenas to two Michael Flynn businesses that we’re aware of,” Vice Chairman Mark Warner said. “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, a Virginia Democrat, 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 even 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.

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, which was the home to classified ads that facilitated child exploitation.

The Backpage case was the first time in two decades 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.