Michael Flynn’s lawyers have now “agreed” that the documents he has been withholding from Senate investigators are not protected by the Fifth Amendment. Better late than never. But the wonder is how the American press has close to universally misunderstood this issue for weeks. With one exception, the Washington Post, the media has dumbly reported that Flynn had been resisting compliance with the subpoena because he believed that turning over the documents would violate his privilege against self-incrimination, and at most we learned from the reports that the government was asking what legal theory he was relying on.
There never was a theory he could rely on. That became quite clear in the case of Fisher v. United States (1976). This isn’t a legal subtlety. So permit a bit of fifth amendment pedantry.
You can invoke the privilege in the face of compulsion to give testimony that could incriminate you. There are three elements: it has to be compulsion—a subpoena, with the penalty of contempt for noncompliance, qualifies. It has to be self-incrimination—that is, if compliance with the order might tend to expose you to criminal charges (has to be reasonable fear of a criminal charge, not a fear of some other legal harm or of scandal), and maybe Flynn could establish that element. But it also has to be testimonial—meaning the compulsion is that you utter something in direct response to the order. Here’s where Flynn obviously loses: even if the documents were things he had written himself (like diary entries), he would have written them voluntarily, not under any compulsion.
Flynn wanted to argue that the very act of turning over those documents would have tended to help the government prosecute him. He’d be right, but that would not matter—the privilege is narrower than that. Even more obviously, if these were some sorts of business or government documents not written by him, he’d have no privilege.
Now here’s the one possible, but pretty immaterial, subtlety. If, as required, he hands the documents over, his hand-over is itself compelled. But is it testimonial? Well, even if he does so silently, he would be in effect “saying” something. But what he’d be saying is, “I knew where those documents resided, and I had access to them.” Those “statements” would not be very important to prosecutors—it’s the words in the documents themselves the government wants. And even if this tacit admission of knowledge and access could be used against him, the Senate could immunize him by promising that those “statements” and any evidence derived from them could not be used against him—and then the prosecutor could probably make the case against him pretty easily anyway.
Oh, there is one more theoretically potential subtlety—but it comes from a a bizarre case that surely doesn’t apply here. And by great coincidence it’s from a case involving Webster Hubbell, Hillary Clinton’s former boss in the Rose Law firm. The government subpoenaed documents relevant to the Whitewater matter, documents that could implicate Hubbell on tax and fraud charges. The subpoena was framed so broadly that there were zillions of documents in Hubbell’s office that could conceivably have been relevant to suspect transactions. Hubbell said the subpoena effectively required him to cull through the zillion documents to identify which ones were possibly connected to the alleged crimes. In 2000, Hubbell convinced the Supreme Court that if he complied, the “speech act” of turning the selected papers over would reveal the process of his thinking by which he did the sorting and would hence reveal his understanding of the intricacies of the transactions. So Hubbell could establish all the elements of then privilege.
So thank you General Flynn for finally agreeing to do something you never had a right not to do in the first place. And a question to the press: Do your legal researchers know how to Google “fifth amendment + documents”? Oh yes, maybe the Senate was deliberately playing coy here as matter of strategy. But if so, the press didn’t show any curiosity about that.
Robert Weisberg is the Edwin E. Huddleson, Jr. Professor of Law and Faculty Co-Director of the Stanford Criminal Justice Center. His scholarship focuses on criminal law, criminal procedure, white collar crime, and sentencing policy.