This article first appeared on the Just Security site.
The news that retired Lt. Gen. Michael Flynn, Trumps former national security advisor and campaign aide, has refused to comply with a Senate Intelligence Committee subpoena for documents raises the question of when witnesses may lawfully resist subpoenas for testimony or documents based on Fifth Amendment grounds, which is the basis cited by Flynns lawyer.
The answer is it depends on what youre trying to avoid doing. It is fairly straightforward to rely on the privilege against self-incrimination to refuse to provide testimony, but much more difficult when the subpoena is for documents.
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Witnesses may assert the Fifth Amendment privilege whether the subpoena originates from a congressional inquiry, or from the Justice Department. The privilege is broad, and can be asserted when the evidence sought is directly incriminating, incriminating when considered with other evidence, or could lead the government to incriminating evidence.
When a witness asserts the privilege to refuse to provide testimony, the government has the option of challenging the assertion before a judge, arguing that under no scenario will the witnesss words be self-incriminating.
However, because it is difficult to account for all the possible ways that a witnesss testimony might ultimately be incriminating, this tack is a rare one. Instead, the government will ordinarily seek an order of use immunity from a judge, which eliminates the witnesss Fifth Amendment privilege in exchange for a legally enforceable promise that the witnesss words will not be used against him or her, either directly or indirectly.
If the government is reasonably certain that it will not ever want to prosecute the witness in connection with the particular ongoing investigation, this approach is virtually risk-free. The government gets the testimony, and gives up nothing in return. Needless to say, a grant of immunity does not protect the witness from a perjury prosecution if he or she intentionally testifies falsely.
However, if the witness is also a potential target of the investigation, immunity is not likely an option. As I have written here, the test that the government must satisfy to show that it is has made no direct or indirect use of the immunized testimony is so stringent, prosecutors will not risk immunizing a witness if there is any chance they might want to prosecute that witness down the road.
That is why there is virtually no chance that Flynn will get immunity for his testimony, unless it is part of a plea and cooperation deal, or the FBI investigation, now being led by Robert Mueller, reaches the conclusion that there exist no grounds to prosecute him (which seems unlikely based on the reported evidence).
Beyond Flynn, it will be essential that as the congressional investigations progress, they coordinate with Muellers investigation to ensure that they do not immunize anybody that may be in Muellers sights.
Former National Security Adviser Mike Flynn at the daily press briefing at the White House in Washington, DC, on February 1, 2017. NICHOLAS KAMM/AFP/Getty
The statute that authorizes the granting of use immunity (18 U.S.C. 6001-6005) requires that the Attorney General be given 10 days notice before a congressional committee can grant immunity, and the Attorney General can ask for an additional 20-day delay. In practice, the congressional committees and Muellers team will likely coordinate to ensure that no grants of immunity are provided to any persons who could potentially end up on Muellers radar for potential prosecution.
However, if a subpoena is for documents, the analysis is different. A witness cannot assert the Fifth Amendment privilege for the content of any existing documents, because the creation of those documents was voluntary, and the Fifth Amendment protects only against statements that are compelled by the government.
However, the Supreme Court has held that the act of production of documents, not the documents themselves but what is communicated by a witness handing them over, can be testimonial in nature because it can reveal the existence and authenticity of the documents and therefore in some circumstances a witness may be able to assert the privilege on this narrow ground alone.
However, the government can ordinarily quite easily resolve this limited challenge. Either a court will find that the act of production is so inconsequential, in light of the information about the documents already available to the government, that there is no risk that it will be self-incriminating, or the government can obtain a narrow grant of immunity for the act of production alone.
Even if the subpoenaed witness is a potential target, like Flynn, this path ordinarily presents little risk. For these reasons, it is often said that subpoenas for documents cannot be resisted on Fifth Amendment grounds.
There is an important exception, however, and it may be in play in the Flynn case. The Supreme Court held in connection with one of the criminal prosecutions of Webb Hubbell, a former associate attorney general who was subpoenaed by the independent counsel investigating President Bill Clintons Whitewater real estate investments, that when a subpoena for documents is extremely broad and amounts to a fishing expedition, then the testimonial aspects of production can be far more reaching and consequential.
The Court held that:
It is apparent from the text of the subpoena itself that the prosecutor needed respondents assistance both to identify potential sources of information and to produce those sources. Given the breadth of the description of the 11 categories of documents called for by the subpoena, the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions.
What the District Court characterized as a fishing expedition did produce a fish, but not the one that the Independent Counsel expected to hook. It is abundantly clear that the testimonial aspect of respondents act of producing subpoenaed documents was the first step in a chain of evidence that led to this prosecution. The documents did not magically appear in the prosecutors office like manna from heaven. They arrived there only after respondent asserted his constitutional privilege, received a grant of immunity, andunder the compulsion of the District Courts ordertook the mental and physical steps necessary to provide the prosecutor with an accurate inventory of the many sources of potentially incriminating evidence sought by the subpoena.
The problem with a fishing expedition subpoena, the Hubbell court found, is that the subpoenaed witness is no longer simply required to perform the narrow, ministerial act of surrendering documents that do not themselves enjoy Fifth Amendment protection.
Rather, the witness is essentially being asked to assemble pieces of the case against him or her, and that then can be considered self-incriminating.
The consequence in the Hubbell case was the dismissal of the indictment, as it was largely constructed on the basis of the documents obtained from the subpoena of him.
On the basis of this decision, Courts have held that in order to avoid triggering the broad Fifth Amendment concerns that arose in Hubbell, prosecutors (or congressional investigators) must describe the documents that they are seeking with reasonable particularity.
While that standard does not require the government to identify each and every document within a group of documents of which it is aware, it does not ordinarily allow the government simply to assert that given the witnesss activities, he or she must have such documents in his or her possession.
The Senate Intelligence Committee is plainly aware of this concern because following Flynns refusal to comply with the Committees subpoena, it issued new subpoenas yesterday that are apparently more precise in what they are seeking. Senator Richard Burr, chairman of the Committee, said that, Weve been very specific in the documents now that we have requested from General Flynn.
In addition, the Committee has subpoenaed Flynns corporate entities, with Senator Mark Warner, the leading Democrat on the Committee, explaining that, A business does not have the right to take the Fifth. He is right about that. There is a long line of Supreme Court precedent holding that collective entities including corporations, partnerships, professional associations and the like enjoy no Fifth Amendment privileges, and that a custodian of the records cannot refuse to surrender documents of the business even if they might incriminate that person.
Some commentators have suggested that in light of Supreme Court rulings that corporations enjoy certain First Amendment protections, the Court might one day revisit its decisions regarding corporations and the Fifth Amendment. Lawyers generally, and prosecutors in particular, are ordinarily a pretty risk-averse lot. Therefore, with respect to the Flynn subpoenas for documents, they will want to minimize the risk that the subpoenas are overly-broad, amounting to a fishing expedition, or that a reviewing court will one day have a different view of subpoenas to business entities. All reports indicate that the Senate Committee is being careful in its approach. Because the Senate procedure for enforcing subpoenas is cumbersome, it seems likely that if Flynn continues to refuse to surrender the documents, it will be Mueller and his team that will ultimately have to decide whether to move forward with enforcement, giving him an opportunity as well to weigh the risks and ensure that they are minimized.
Alex Whiting is a Professor of Practice at Harvard Law School. From 2010-13, he served as the Investigation Coordinator and the Prosecution Coordinator in the Office of the Prosecutor at the International Criminal Court.
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Do Flynn's Documents Come Under the Fifth Amendment? - Newsweek