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Cc OV IN G TON Robert K, Kelner BEIJING BRUSSELS LONDON LOS ANGELES Covington & Burling LLP NEW YORK SAN FRANCISCO SEOUL One CityCenter SHANGHAI SILICON VALLEY WASHINGTON 850 Tenth Street, NW Washington, DC 20001-4956 T P| 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.’ 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.”? 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 HOUSE_OVERSIGHT_031670