Thread by @renato_mariotti

THREAD: Can Michael Flynn keep stonewalling the House Intel Committee? What are the consequences for him if he does?

1/ Today House Intel Chair Adam Schiff released a letter to Michael Flynn, which details his attorney's attempts to stonewall the committee in response to a subpoena for Flynn's testimony. Schiff calls Flynn's attorney, Sidney Powell, "unprofessional." politico.com/f/?id=0000016d…

2/ The letter details the many back and forth phone calls between Powell and House Intel staff members. Powell tried a number of different approaches to delay Flynn's testimony. She blamed his need to testify as a witness for a DOJ trial, among other things, to delay.

3/ Her most recent position is that Flynn will plead the Fifth in response to any question other than to confirm his name. As Schiff notes, that is improper.

A witness can only take the Fifth as to specific questions if the answer to that question would be incriminating.

4/ What that means is that the answer would have to help the government convict you of a crime. So you can't take the Fifth if you're asked about the weather or the clothes you wore yesterday unless those facts are relevant to potential criminal charges against you.

5/ In addition, you can't plead the Fifth in relation to crimes that you've already been convicted of. So once Flynn was sentenced, he could not plead the Fifth as to questions relating to the lies that he told the FBI because he already would be convicted and sentenced.

6/ It is true that Flynn could avoid many questions by asserting the Fifth, but there is certainly information he could provide to House Intel that would not incriminate him.

Stonewalling the House Intel committee entirely is actually a high risk strategy for Flynn.

7/ The risk to Flynn does not come from subpoena enforcement by the Democrats, although the committee could certainly go to court to try to enforce its subpoena, and that would force him to pay legal fees to defend against that legal action. (The alternative would be to comply.)

8/ But as you can see from other high-profile subpoena battles, like the fight over the Don McGahn subpoena, the court process can take a lot of time to work itself out.

Flynn's most serious downside comes from the criminal sentencing he has coming up.

9/ The judge is required by law to take into account all of the "history and characteristics" of Flynn, and that will include whether his cooperation (or lack thereof) with Congress.

10/ The judge might also view his lack of cooperation as inconsistent with the spirit of the cooperation deal he signed with Mueller's office, although it does not violate the letter of the deal, which requires him to cooperate with federal or state "law enforcement authorities."

11/ Flynn got a *really* favorable deal from Mueller, agreeing to plead only to a single count of lying to the FBI, which carried with it a recommended sentence of 0 to 6 months in prison (which could be served via probation or home detention). But he could get up to five years.

12/ The judge has already expressed grave concern about Flynn's behavior, and appearing uncooperative prior to sentencing could further influence the judge to give Flynn a prison sentence.

Flynn also seemed less than fully cooperative with DOJ during a recent trial.

13/ This is part of a very high stakes and high-risk strategy by Flynn and his new attorney Sidney Powell. He appears to believe that he will undo his guilty plea, which is very unlikely to occur. It is very difficult for defendants to undo a guilty plea after it is made.

14/ Powell also recently filed a very bizarre motion seeking to compel DOJ to release a wide range of documents, including reports relating to Bruce Ohr and the texts between former FBI personnel Peter Strzok and Lisa Page.

You can read it yourself: politico.com/f/?id=0000016c…

15/ Her motion is well-written but is, to use an old phrase, "all hat and no cattle." Her complaint is that the government is obligated to produce evidence that is favorable to the defense, but she doesn't and cannot explain why this evidence shows Flynn didn't lie to the FBI.

16/ That's the core of what is required for this type of motion. The government is only obligated to turn over information that will help you in your criminal case, not every document that you might want to read.

I don't expect the Judge to look favorably upon this motion.

17/ Powell's strategy is not what a savvy criminal defense attorney would do. But it makes sense on a different level. Flynn probably expects to receive a pardon from Trump, and appearing defiant (and maintaining his innocence) would help him raise money from Trump fans.

18/ What can be done about this?

House Intel should aggressively push to enforce its subpoena before Flynn is sentenced, so the judge can consider Flynn's words and actions in response when he sentences Flynn.

19/ In addition, DOJ has said very little about the apparent issues with Flynn's cooperation. If DOJ does not inform the Judge of issues with Flynn's cooperation, as they are required to do, the House should conduct oversight and find out why. /end