If I make the statement here on my blog that the "peaceful transfer of power" in Presidential elections rests on an assumption of the legitimacy of the election process, I am offering an opinion, and I'm not likely to get visited by the FBI for my seditious conspiracy tendencies.
After all, I would argue, it does. That's why we have the 12th Amendment and the Electoral Count Act; IMHLO (both were responses to Presidential elections, and efforts to make them at least appear to be more legitimate).
But if General Flynn had offered that statement as a response to the question everyone is so upset about, would he be in the same position as me? Or could it be interpreted by prosecutors as an admission against his interests in a criminal case for seditious conspiracy, or some other criminal charges?
I submit the latter is much more likely. Change the facts, change the outcome.
Popehat's analysis rests on several unknowns which create assumptions. The primary one is that Flynn would have said simply "Yes" or "No." My hypothetical statement is not as blunt as that, but could be construed that way by prosecutors bent on charging me with a crime. They could legitimately use that statement from my blog against me in court; but why should they be able to force me to say it from my mouth, arguably out of context and distorting what I originally meant? The entire basis of due process and presumption of innocence is that I don't have to actively aid in my own incarceration.
The other issue is that Gen. Flynn was not testifying in court. A trial judge may well have decided Flynn's potential (he wouldn't have answered yet) response to that question was not covered by the right to not self-incriminate. After the answer, an appellate court might decide differently; or agree with the trial court. That's the way the system works.
But Flynn was before a Select Committee of Congress, and his statement is only being presented in the court of public opinion. There are no appeals there, and precious little cross examination or instruction from the bench as to how the questions raised are to be scrutinized. So, again IMHLO, the Committee done Michael Flynn dirty. They are using his exercise of his Constitutional rights against him.
Now, the question of the legitimacy of the election is one of Trump's key arguments. This is not to say it is in any way a valid one. His belief that the election was illegitimate does not justify his illegal and extra-legal actions as POTUS. Flynn may be of the opinion that the peaceful transfer of power depends on the legitimacy of the election, but that doesn't make him the arbiter of that legitimacy. When the Court handed down Bush v. Gore, Al Gore accepted the legitimacy of the court system. What he personally thought of the Court's opinion (the legal one, I mean) was irrelevant, and he knew it. Had Gore refused to accept the Court's decision, that might well have been criminal; but he didn't do that. It may be irrelevant what Gen. Flynn thinks about the legitimacy of the 2020 election; or it may be an element in a criminal charge, based on his actions. So it isn't as simple an issue as: "Is his answer 'yes'? Or 'no'?"
And whether he properly invoked his rights is legitimately an issue for a court of law. But none of us are even playing one on TeeVee.
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