There 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.