Best exchange of the crazy day at the hearings:

“General Flynn, do you believe in the peaceful transition of power in the United States of America?”

“The Fifth”

Note that he took the Fifth, exercising his right to avoid self-incrimination, in response to a yes or no question. There are only two possible answers, and a “yes” answer would not incriminate him, so …

While his invocation of the fifth is not legally equivalent to a “no,” and can’t be used against him in a criminal proceeding, invoking the fifth and a “no” answer are exactly identical outside of courtroom formalities. Since he would not be incriminating himself with a “yes” answer, the only possible logical conclusion is that he does not believe in the peaceful transfer of power.

Also, I think his invocation of the Fifth in this instance might be used against him in a civil proceeding. In some civil cases, judges may advise jurors that they can draw an “adverse inference” against a witness who claims the Fifth in this kind of questioning. Of course that isn’t always true. Many times a witness will invoke the Fifth in response to a very broad, open question, and no logical inference can be drawn. He may be avoiding self-incrimination on a wholly different matter, for example, from the matter considered in that trial.

In this case, however, Flynn was asked a yes or no question, and only a no answer was self-incriminating, so … infer away.

29 thoughts on “Best exchange of the crazy day at the hearings:

  1. It does make some sense.

    For instance, with the Supreme Court ruling overturning, at least partly, the Administrative State, and specifically the ability of the EPA to regulate greenhouse gas emissions, which, if left unchecked, will result in the (premature) deaths of 10s of millions to hundreds of millions of people around the world, the correct answer to ‘is it right to assassinate Gorsuch, Roberts, Kavanaugh, Thomas, Barrett and Alito’ is ‘fifth.’

    1. Of course, it also places a new context on the ruling against New York. Blow up coal plants. The Supreme Court ruled that people have a right to carry and use arms for self protection.

  2. I’m simply not going to hold using the 5th against someone. Just doesn’t seem right to me.

    1. I am dubious about that too. It is a Constitutional right. A person should not be criticized for using it. But, as Uncle Scoopy points out, unavoidable inferences can be made from their use of it, and those are open to comment, criticism, and conclusions.

      In the 1950’s, people testifying before the House Un-American Activities Committe were mocked and derided for taking the Fifth, but they were in the right, avoiding persecution and prosecution in unjust times. The were mocked and derided for it, but they were right. I very much doubt that Flynn and his ilk will be remembered that kindly, but they are still just using a basic legal right.

      1. I won’t hold taking the 5th against; I will hold not answering “yes” against him.
        In a better country, he’d already have been in prison (or, if you will, stockade) for a while. Instead he is still collecting a pension. I expect he’s got nothing to worry about.

  3. “You mean like when British citizens pulled out of the British Empire and formed America?” It was a stupid question designed to elicit a sensational response.

    1. It was a very straightforward question, friend. We all realize you’d like to make it complicated, but it’s not, and neither is his unwillingness to provide an answer. We all know it. Deep down, you do too.

  4. Liz should’ve hit him hard.

    “Mr. Flynn, do you have knowledge that Donald Trump was given, and still receives, golden showers by Russian prostitutes?”

    “I take the fifth.”

    1. Flynn was called as a witness in a non-criminal trial. Witnesses have the option to plead the fifth selectively, only to questions where they might incriminate themselves. It’s not the same as being a defendant, where the accused must typically invoke the fifth to all questions or waive his rights.

      If he did believe in the peaceful transfer of power, he could have answered “yes” to that question without losing his right to invoke the fifth for other responses.

      1. I think that’s a fair question though. Did he just plead the 5th on all questions? I realize he didn’t need to but that’s important context. Don’t know. I didn’t watch.

        1. They only asked him three questions:

          Cheney: Do you believe the violence on January 6 was justified morally?
          Flynn: Take the Fifth.
          Cheney: Do you believe the violence on January 6 was justified legally?
          Flynn: Fifth
          Cheney: Do you believe in the peaceful transition of power in the United States of America?
          Flynn: The Fifth

          You can see why he had to take the fifth on the first two. They are basically lawyerly tricks in that he could incriminate himself with either a yes or a no. If he says yes, it suggests that he supported and still supports armed sedition. If he says no and it turns out he was involved, it means he knew it was wrong, which can be used to establish his criminal intent.

          The third question, however, is fundamentally “Do you believe in the American form of democracy?” He could have proudly shouted “yes” to the rooftops without incriminating himself in any way or limiting his ability to plead the fifth on other questions, while showing himself a loyal American citizen and patriot – if that was the correct answer. Obviously it was not.

          1. There are situations where a witness who selectively pleads the 5th to some questions can be deemed to have waived their 5th Amendment rights. Basically, if you answer some questions on a subject, a court could order you to answer others. I don’t think saying he believed in a peaceful transfer of power would have been enough to waive his right, but I can definitely see a lawyer telling Flynn it’s not worth taking a chance and instructing him to plead the 5th to every question no matter how innocuous it seemed.

          2. Well considering I haven’t practiced law (or paid my bar dues) in 20 years I can assure you I don’t have a current license to revoke. That’s why I usually describe myself as a “recovering lawyer.”

            Just out of curiosity, which part of what I said do you think was nonsense? That if a witness begins answering questions on a subject they may not be able to plead the 5th to additional questions on that subject? Or that many lawyers would instruct a witness to plead the 5th to every question to protect against inadvertently waiving the privilege? That is better advice than it may seem because witnesses sometimes answer questions with more details than necessary despite their lawyer’s warning to not volunteer information not asked in a question. Sometimes, again despite a lawyer’s instructions to pause several seconds before answering to give the lawyer an opportunity to object, a witness will give an answer quickly to a question to which the lawyer would object. Basically, clients can’t always be trusted to follow your advice and so if you are going to have the client plead the 5th to most questions it’s just safer to assert the privilege to all.

            You can argue it’s unethical to assert the privilege if the answer would not incriminate you. There is a video on YouTube of a criminal lawyer and a police detective/law student addressing a law school class about all the reasons you should NEVER talk to the police. No matter how innocuous an answer may seem, there is a way it could be incriminating/lead to your prosecution. Even if you give nothing but completely true answers to questions under oath, it is at least possible a prosecutor might believe you were lying and charge you with perjury.

            If I had to guess, the reason that Flynn plead the 5th to that question was because he was following the advice of his lawyer. Think of it this way. What would Flynn gain by answering the question? He had already been prosecuted and pressured to plead guilty to lying to the FBI by threatening the prosecution of his son even though the FBI agent that interviewed him thought he had been truthful.

          3. Yeah. That’s what I was getting at. It also explains the delayed consult. The question put him in a tough position based on the instructions from his lawyer. In the end, it wasn’t worth the risk.

  5. Flynn is a traitorous, seditionous wackadoodle who shouldn’t see another day as a free man, but we already knew this.

  6. If you plead the fifth you have to on all questions, if you answer yes or no on one question, you can’t plead the fifth on any other question. Legally.

    1. That only applies to defendants. Flynn was not accused of a crime, and was called as a witness. Witnesses may plead the fifth selectively.

  7. Also, he is a fucking retired three-star general.

    He could still be tried under UCMJ, and should be.

    1. This is the thing that gets me… He’s not only a 3-star general, he’s clearly off his rocker, or at best an asshole with no understanding of anything constitutional. Someone might want to start reviewing his military career to see what other atrocities he may have committed.

      1. Oh, and lest we forget . . .his brother is still an active-duty general officer who was an active participant in the Jan 6th response discussions at the Pentagon.

      2. He does seem to have some wood rot in the Windmills of His Mind. Of all of Trump’s enablers and co-conspirators, he’s the least sympathetic since Paulie Numbnuts Manafort and his fake wheelchair.

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