Does Congress Have Any Options After Flynn Takes The Fifth? You Bet.

440px-Michael_T_FlynnThere has been a chorus of commentators saying that the invocation of the Fifth Amendment by former national security advisor Michael Flynn leaves only immunity as the unlikely option for Congress. This was stated repeatedly on CNN last night.  (I was supposed to go on Anderson Cooper and I was going to correct that view but the terrible massacre in England obviously took priority in coverage).  The fact is that there is an obvious option: move to hold Flynn in contempt.  The case law is not a clear cut as commentators have suggested on the “act of production doctrine.”  Moreover, Congress has an institutional interest in pushing back on such invocations if it does not view the production as testimonial.

It is certainly true, as have bee stated, that the act of production of documents has been found to be testimonial in nature. However, the claim is not absolute and can be validly asserted. The only way to review the assertion would be as part of a contempt proceeding.  It would depend if the assertion is closer to the 1976 case of Fisher v. United States or 2000 case of United States v. Hubbell.

The act of production doctrine was largely defined in Fisher where it was rejected as part of an IRS case seeking documents from two taxpayers through a demand to their accountants/lawyers.  The documents were already known to the IRS and the securing of the documents was viewed as a “foregone conclusion.”  It is not enough that the documents are incriminating. They must be compelled as a testimonial matter in their production.

Flynn would argue that the issue comes closer to Hubbell in the Whitewater investigation by Independent Counsel Ken Starr.  The grand jury subpoena duces tecum in that case was sweeping and poorly defined.  He was given immunity to produce the documents under  18 U.S.C. §§ 6002-6003.  The Supreme Court found the production was testimonial because the demand did not meet the required demonstration of  “reasonable particularity” for the documents.

Flynn could be challenged in his assertion by saying that this is not the same type of “fishing expedition” as Hubbell but rather comes closer to the “foregone conclusion” of Fisher.

Thus, Congress could move for contempt and argue Fisher against Flynn.

Flynn’s lawyers were correct in taking this approach for their client but the ultimate success depends on the basis for the invocation.

65 thoughts on “Does Congress Have Any Options After Flynn Takes The Fifth? You Bet.”

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  2. There is a case that held that the claim and exercise of a constitutional right cannot be converted into a crime. Miller v. US (5th Circuit) 230 F. 2d. 486 (1956) Contempt is a crime. Why not just exercise the first Amendment, the right not to speak? Utilizing the Fifth is premature. If Flynn were charged criminally he could use the Fifth, offers of immunity would be irrelevant.
    Congress and the Courts have sworn an oath to protect an individual’s right to exercise a right expressed in the Bill of Rights. Should these oath takers now be allowed to ignore their oath and either encourage or compel someone to waive their rights, under the promise of immunity, or threat of contempt?. Just how can they do that?
    The cases mentioned by the Professor fail to take this into consideration. But only a belligerent claimant in person can claim these privileges. See US v Johnson, 76 FSupp 538. Counsel is not in a position to make this claim and exercise.
    The Constitution will provide no better protection than your [or your attorney’s] understanding of it.

  3. Oh boy! I hope it’s the same options Congress took advantage of with Eric Holder and Lois Lerner.

    Because Congress brought those mofos to heal…

  4. Thought I would address the substance of Prof. Turley’s post, since it appears that few (if any) comments do that and since I deal with the 5th Amendment and the “act of production” doctrine on a fairly regular basis.

    The “act of production” doctrine is very important. When a person who has received a subpoena for documents produces those documents in response to the subpoena, the act of producing those documents can be “testimonial” for purposes of the 5th Amendment. For example, if a subpoena requires you to produce all of your bank statements for 2016, when you produce those bank statements in response to the subpoena,you are “testifying” that a) during 2016 you had bank accounts at the banks for which you produced statements, and b) as of the date you were served with the subpoena, you were in possession of the bank statements that were produced.

    If the “testimonial” aspects of producing the documents in response to the subpoena can potentially be used against you in a criminal prosecution, then you potentially have a valid argument that you cannot be compelled by the subpoena to produce those documents because the act of producing the documents would violate your 5th Amendment rights.

    The courts have put limits on the ability of individuals to rely on this “act of production” doctrine, however. For example, if the records demanded by the subpoena were required by law to be kept, the “act of production” doctrine may not apply. This is the so called “required records doctrine. For example, Title 31 of the US Code requires US persons to keep records relating to all of their foreign bank accounts in their possession for 5 years.

    The government has used the existence of this requirement to successfully argue that a person who receives a subpoena for all of their foreign bank records required to be kept under Title 31 cannot refuse to turn over these foreign bank records in response to the subpoena based on the possibility that the act of producing those foreign bank records could be used against them in a criminal prosecution. The government has prevailed EVEN IF THE GOVERNMENT DID NOT KNOW ABOUT THE EXISTENCE OF THE BANK ACCOUNTS. The government has repeatedly won this argument in the Courts of Appeal.

    I have not seen the subpoena issued to Flynn. But if the subpoena asks for documents that were required by law to be kept, then Flynn’s refusal to produce those documents based on 5th Amendment grounds may not be well grounded.

    Also, as discussed by Prof Turley, if Flynn’s possession of the subpoenaed documents is a “foregone conclusion,” then his act of producing the documents, per the Supreme Court, will not be deemed to be sufficiently “testimonial” for purposes of the 5th Amendment. Establishing that Flynn’s possession of the subpoenaed documents is a “foregone conclusion” could be done in a number of different ways.

    Personally, I think the “foregone conclusion” exception to the “act of production” doctrine is logically flawed. It is the equivalent of saying that the government can force a defendant to testify against himself/herself where 100 witnesses saw the defendant shoot the victim in person and the shooting was captured on videotape. The existence of all of those witnesses and the videotape make it a “foregone conclusion” that the defendant shot the victim, but the government cannot force the defendant to testify against himself that they shot the victim. Unfortunately the courts don’t see things that way when the “act of production” doctrine is involved.

    Which is why Flynn may be compelled to turn over subpoenaed documents if Congress seeks to hold him in contempt.

    1. I should also mention that Flynn (like Lois Lerner) has a valid 5th Amendment privilege with respect to testimony. My comments above deal only with the production of documents in response to a subpoena.

    2. 5th Amendment

      “…nor shall be compelled in any criminal case to be a witness against himself,…”

      You have missed the point of the American founding documents.

      The benefit of the doubt goes to the American citizen, not to the limited government.

      The 5th Amendment provides a right to the accused citizen, not to the limited government.

      The accused has a right not to incriminate himself.

      A witness provides testimony which is evidence.

      If the accused does not have to provide evidence as testimony,

      the accused does not have to provide evidence as physical articles

      (i.e. his papers which are covered by his right to privacy).

      It is preposterous to misrepresent the 5th Amendment to the Constitution which precludes a citizen from being compelled to incriminate himself.

      You have got to be kidding me. You are absurdly splitting hairs in favor of the government not the citizen.

      The accused cannot be compelled to conduct any act that will incriminate himself.

      You seem not to grasp that American citizens are the SOVEREIGN and government the SUBJECT.

      How is it that you have no sense of the American Revolution in governance?

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