Kevin Daley on May 23, 2017

Lt. Gen. Michael Flynn’s decision to exercise his Fifth Amendment privilege against self incrimination and ignore a congressional subpoena should not be read as an admission of guilt, legal experts say.

Though his decision to invoke his Fifth Amendment right may create the appearance of guilt, experts say a competent defense attorney would never allow his client to surrender documents or testimony under the present circumstances.

As Harvard Law School professor Noah Feldman explains, Flynn’s production of documents to a congressional panel could jeopardize his ability to mount a defense in future proceedings. The documents are sure to solicit hostile lines of questioning from committee Democrats that will dominate reporting for the foreseeable future. The longer the questions persist, the greater the possibility that Flynn’s answers could be distorted, or that he could be caught in an immaterial lie. No capable defense lawyer would ever allow their client to appear under such circumstances.

In addition, a committee hearing is not a court, and as such, members of Congress are at liberty to ask any question they please. At trial, lawyers may only ask witnesses questions if their probative value exceeds any prejudicial effect. In a committee hearing, no topic or question is off limits.

“Even if he is innocent of all crimes, his case is so publicly salient, so politicized and so important to the broader investigation of the Trump administration that his testimony would be a prime target for distortion,” Feldman writes. “Indeed, if a lawyer let Flynn testify, you’d seriously wonder if the lawyer was competent to represent him.”

Others share Feldman’s assessment.

“Some members of Congress have called for charges to be brought against Michael Flynn, so any competent defense lawyer is going to tell him to take the Fifth,” said Paul Butler, a former federal prosecutor who handled public corruption cases.

“Any good defense attorney is going to say, ‘Shut up. Look, Congress is out to get you. You need to keep your mouth shut and don’t say anything that you don’t have to.’”

Still, Butler says the subpoena puts Flynn in an impossible position, as it forces him to chose between compromising the strength of his defense and appearing guilty before the general public.

“Many times, as us professionals say, ‘Just because you take the Fifth, it doesn’t mean you’re guilty,’” Butler said. “Most lay people, including the president of the United States, don’t think so.”

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