Professor Charles Tiefer, former general counsel (acting) of the U.S. House of Representatives and the Senate, was interviewed by VICE News for a May 18 article on former National Security Adviser Michael Flynn’s refusal to comply with a subpoena from the Senate Intelligence Committee, which is looking into reports that the Trump campaign colluded with Russia during the 2016 election.
The chairman of the committee, Sen. Richard Burr (R-N.C.), said Thursday that Flynn would not comply with the subpoena, which seeks documents from the former general, who in February resigned as national security adviser after it was revealed he had lied to administration officials about his contacts with Russia’s ambassador to the United States.
The Associated Press reported later Thursday that Burr had rephrased his statement to say Flynn’s lawyers had not yet responded to the subpoena.
Speaking with VICE News, Tiefer said that Flynn’s noncompliance was highly unusual but that it might be his only move if he wants to avoid jail time.
“It signifies that [Flynn] expects prosecution,” Tiefer said.
Asked about Flynn’s possible strategy, Tiefer said: “Flynn may be invoking his Fifth Amendment privilege. There was an earlier time some weeks ago when he said that he wanted an immunity deal with the Senate committee, and that often signifies fear of self-incrimination.”
In late March, Flynn told FBI and congressional officials investigating possible links between the Trump campaign and Russia that he was willing to be interviewed in exchange for a grant of immunity from prosecution. His offer was rebuffed. (See Tiefer’s March 30 column for Forbes.com, “Flynn’s Pursuit of Immunity Means He May Be Willing to Tell All About Trump and Russia.”)
Tiefer contributed an article to Forbes.com on May 17, “The Special Counsel Isn’t Enough – Why It’s Vital That Congress Vigorously Continue Russia Probes,” in which he dismissed arguments that congressional investigations of potential Trump-Russia ties would undermine the work of the special prosecutor appointed this week by the U.S. Department of Justice.
Robert Mueller III, a former FBI director, was named to lead the inquiry into allegations of Russian interference in the 2016 presidential election.
Tiefer, who writes regularly for Forbes, pointed out that Washington has a long history of simultaneous and well-coordinated investigations by special prosecutors and congressional committees: “During Watergate, special prosecutors Archibald Cox and Leon Jaworski worked at the same time as the Senate Watergate Committee [and in] the case of the Iran-Contra affair, special prosecutor Lawrence Walsh worked at the same time as the House and Senate Iran-Contra Committees.”
Tiefer served as special deputy chief counsel of the House Iran-Contra Committee in the 1980s.
In addition, congressional investigations, unlike Mueller’s investigation, can keep the public informed, Tiefer pointed out: “The special prosecutor works in private, slowly, and with a closed-door grand jury. If delving into former FBI Director James Comey‘s conversations with President Trump were left to the special prosecutor, it might easily be 2018 — if ever — before the public would learn the details.”
Moreover, the congressional investigations could help inform measures that should be considered before the 2018 midterm elections, Tiefer said: “The Senate Watergate Committee is most famous for preparing the way for President Nixon’s impeachment. It is sometimes forgotten that the Watergate Committee studied the need, and built the case, for the campaign finance law that was subsequently passed.”
Concluded Tiefer: “Congress must learn the lessons in time to act on them in months to come. That is neither Mueller’s job nor his timetable.”