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COVINGTON

BEIJING BRUSSELS LONDON LOS ANGELES
NEW YORK SAN FRANCISCO SEOUL
SHANGHAI SILICON VALLEY WASHINGTON

Robert K. Kelner

Covington & Burling LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
T █

By E-Mail and First Class Mail
May 22, 2017

The Honorable Richard Burr
The Honorable Mark R. Warner
Select Committee on Intelligence
United States Senate
Washington, D.C. 20510

Re: Subpoena to Lieutenant General Michael T. Flynn (Ret.)

Dear Chairman Burr and Vice Chairman Warner:

We write in response to the Senate Select Committee on Intelligence’s subpoena dated
May 10, 2017, requesting that our client, Lieutenant General Michael T. Flynn (Ret.), produce
any documents he may have that are responsive to a broad range of requests covering an 18-
month period of time. Specifically, the subpoena requests that he create a list of all meetings and
all communications between himself and Russian officials, and that he produce records of all
communications between himself and President Trump’s campaign that were in any way related
to Russia, for the period from June 16, 2015, to January 20, 2017.

In our May 8, 2017, letter to the Committee, we reiterated General Flynn’s eagerness to
give a full account of the facts and to answer the Committee’s questions, should the
circumstances permit, including assurances against unfair prosecution. We stated that, absent
such assurances, General Flynn would respectfully decline your request for an interview and for
the production of documents.

Our client’s position remains unchanged. Producing documents that fall within the
subpoena’s broad scope would be a testimonial act, insofar as it would confirm or deny the
existence of such documents. Under the Fifth Amendment to the United States Constitution and
applicable court precedents, no person is required to offer testimony when he has “reasonable
cause to apprehend danger from a direct answer,” even when that person is entirely innocent
and has committed no crime.¹ Indeed, the United States Supreme Court has “emphasized that
one of the Fifth Amendment’s basic functions . . . is to protect innocent men . . . who otherwise
might be ensnared by ambiguous circumstances.”² The Court held that even “truthful responses
of an innocent witness” may provide the Government with evidence that could be used against

______________________________________________________________________________
¹ See Ohio v. Reiner, 532 U.S. 17, 21 (2001) (internal quotation marks omitted).
² Id. (emphasis in original) (internal quotation marks omitted).

DC: 6427118-1

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