Last week, General Michael T. Flynn invoked his Fifth Amendment privilege against self incrimination in response to a subpoena duces tecum from the Senate Intelligence Committee. Flynn, a former national security advisor to President Trump, is the subject of an investigation into his connections with Russia. In response, the Intelligence Committee began prepping two new subpoenas, targeted at Flynn’s businesses this time.
“While plenty of witnesses invoke the Fifth Amendment to avoid giving testimony,” the Washington Post wrote last week, “some senators and legal experts are skeptical that the Fifth Amendment can be applied to a request for documents.” Wait, what?
If that comment strikes you as odd, you’re not alone.
Can the Fifth Apply to Document Production? Yeah.
While the Fifth Amendment doesn’t protect the content of documents, it has been held to protect individuals against producing documents that may be incriminating. (The Fifth applies to congressional investigations that are not “criminal cases” per se, we should note, where compelled testimony could lead to the discovery of incriminating evidence.) One hundred and thirty-one years ago, in the 1886 case of Boyd v. United States, the Supreme Court explained that “a compulsory production of the private books and papers of the owner… is compelling him to be a witness against himself.”
While Boyd’s pronouncements regarding the Fourth and Fifth Amendment haven’t exactly stood up to the test of time, the Supreme Court has nonetheless maintained that the Fifth’s protection against compelled production applies to “testimonial communication that is incriminating,” as the Court explained in 1976’s Fisher v. United States.
Fisher gave birth to the “act-of-production doctrine,” under which the Fifth Amendment can protect against production where the act of producing would be compelled, testimonial, and incriminating. Where documents are prepared voluntarily prior to any subpoena, as they were in Fisher, they cannot be considered “compelled.”
Further, if the government can identify the documents with sufficient particularity, the Fifth Amendment may not apply. If their existence is a foregone conclusion, then production is not testimonial in nature.
But when that particularity isn’t present, the Fifth is back in play. In 2000’s U.S. v. Hubbell, the Court ruled that the Fifth Amendment privilege against self-incrimination can extend to disclosing the existence of incriminating documents in response to a subpoena. There, the Court explained:
We have held that "the act of production" itself may implicitly communicate "statements of fact." By "producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic." Moreover, as was true in this case, when the custodian of documents responds to a subpoena, he may be compelled to take the witness stand and answer questions designed to determine whether he has produced everything demanded by the subpoena. The answers to those questions, as well as the act of production itself, may certainly communicate information about the existence, custody, and authenticity of the documents.
Such “compelled testimony,” the Court explained, did not depend on the content of the documents demanded, but the “testimony inherent in the act of producing those documents.”
It was these precedents that Flynn relied on when refusing to comply with the Senate Intelligence Committee’s subpoena. The subpoena reportedly requested a broad range of documents related to Flynn’s connections to Russian officials and businesses. “The great breadth of the Committee’s subpoena to General Flynn suggests that his act of producing the requested documents, if they even exist,” Flynn’s attorneys argue, “would be testimonial in nature, given that the Committee has not demonstrated knowledge of the ‘existence, possession, and authenticity of the subpoenaed documents’”.
If that’s the case, Flynn might find cover under the Fifth Amendment.
Three Ways Around Fifth Amendment Privilege
So, are those legal scholars cited by the Post just a few decades behind on their Fifth Amendment scholarship? If they think that the Fifth Amendment can’t apply to document production, then yes.
But if those experts mean that the Fifth Amendment might not protect against document production in this case, then they could be onto something.
There are still several ways the government could force Flynn to produce relevant documents. The first would be to get around the Fifth Amendment protections discussed above simply by narrowing the subpoena to documents that can be described with “reasonable particularity.” That would require having independent knowledge of the documents’ existence and authenticity, as well as Flynn’s control over them. In such a case, producing the documents would no longer be testimonial and, thus, the production itself would not be incriminating.
Alternatively, the Intelligence Committee could, under 18 U.S.C. § 6002, direct Flynn to provide information while granting him immunity, thus removing his ability to rely on the privilege against self-incrimination.
In fact, that very possibility was raised in a study by the Congressional Research Service on “Congress’s Contempt Power and the Enforcement of Congressional Subpoenas,” released just two days after the Intelligence Committee issued its subpoena for Flynn.
“If Congress decides to seek immunity, Mr. Flynn may be compelled to produce those documents and any requested testimony, and Mr. Flynn would not be able to invoke his Fifth Amendment privilege,” the CRS report explains.
That’s unlikely to happen, however. Flynn has already offered to exchange testimony for immunity, with no takers.
The final strategy, and the one most likely to successfully evade Fifth Amendment protections, is to subpoena documents in the possession of Flynn’s businesses, as Fifth Amendment protections against self incrimination do not extend to corporations. If the records demanded belong to a corporation rather than an individual (a threshold question), producing that record is simply a custodial act, without Fifth Amendment implications. Factors that can determine whether a document is corporate or personal include the document's preparer, its location, its business purpose, and more.
This last approach is now the focus on the Intelligence Committee, for the time being. In response to Flynn’s refusal, Senators Richard Burr and Mark Warner, leaders of the Committee, announced two new subpoenas targeting Flynn’s two businesses, Flynn Intel, LLC and Flynn Intel Inc.
“While we disagree with Gen. Flynn's lawyers' interpretations of the taking the Fifth, it is even more clear that a business does not have a right to take a Fifth if it's a corporation," Senator Warner said.
More subpoenas for documents and more battles over the Fifth Amendment could be coming in the near future. The Senate Intelligence Committee voted last Thursday to give both Burr and Warner “blanket authority” to issue subpoenas as the investigation into Russian election meddling continues.