Exactly.
Even then, they’d still have to know that the HOUSE contained illicit materials, and not just be hoping something bad would turn up.
Perhaps Eric Holder can chime in here and help out…
He doesn’t hold a civilian position in the government anymore.
He still holds a commission as a Lieutenant General in the retired reserve and draws retirement pay. That comes with restrictions on receiving payments from foreign governments without prior approval. The DOD Inspector General is investigating those allegations. There is even a possibility to recall him to active duty involuntarily for UCMJ proceedings depending on the results of that investigation. ISTR the recall authority for retirees is SECDEF not POTUS. That’s a completely separate can of worms not directly related to the subpoena, though.
If you retire, you never really get out of the military.
People, when will you learn not to produce documents when you are being bad?
What if you say you were involved in another illegal activity, entirely unconnected to the case at hand. And you don’t see how you can testify without incriminating yourself in that crime.
How would they know if you mean you were smoking weed, or receiving stolen goods?
Then it might be necessary (outside the presence of the jury) to go step by step, question by question, until the point is reached that you contend you’d incriminate yourself, and then either get immunity or stop testifying.
At this point, it might be helpful to toss out a hypothetical set of facts and we can actually explore what dilemma a given witness faces.
So – what specifically are you picturing?
Exactly as I described. I don’t wanna testify for other reasons, so claim I was involved in other unrelated criminal activity.
Where were you? Who were you with? What were you doing? What day/time/location?
“I’d cannot answer without incriminating myself in other criminal activity, your Honour!”
So, am I off the hook? Does it matter if the criminal activity was just smoking weed? Having sex with a minor? Helping a friend fence stolen goods? Selling weed to a friend?
Will whatever I claim have to be confirmed in any way? If so, how will they do so if I won’t give any details?
The reason I asked for details, though, is that you’ve already been tied in some way to the events in question. In other words, the prosecution wants your testimony because they have some reason to believe you can provide relevant evidence to convict whoever is on trial.
So it’s unlikely that the question, “Where were on August 15, 2016 at 8:30 PM?” is asked without a pre-existing reason to actually know the answer. It’s a foundational question, in other words, intended to establish a basis for the remaining questions. And if you balk at that for Fifth Amendment reasons, the question will be reformulated: “Isn’t it true that you were at the place-relevant-to-this-crime-we’re-prosecuting at that time?”
Now we turn to your answer. Are you contending your mere presence at the location exposes you to criminal liability? It might! But if you’re ordered to answer that question, you are going to say one of two basic things:
(1) I was there at the relevant location, like you thought I was.
(2) I was in fact somewhere else, and revealing that somewhere else location will expose me to criminal liability.
But note that (2) hasn’t asked you yet where you were. It’s just asking if you were there where the crime happened. You’ve testified that you weren’t. It cannot incriminate you to merely truthfully deny being in one place. You’re saying only that you weren’t there; you’ve not been asked where you were.
So if your initial answer is to deny you were in the relevant place, then the prosecution has some decisions to make. You’re testifying under oath to something they think is untrue – they called you because they thought you were at the crime scene. They can impeach you with whatever evidence that they were relying on to show you were there, but impeaching your own witness (while possible) runs into some other evidentiary issues.
So let’s stop there and make this a Choose Your Own Adventure:
You’re a witness, called to testify by the prosecution against Big Sven. You are asked if you were present at the warehouse where Big Sven did his crime at the time of the crime. You decline to answer, claiming Fifth Amendment privilege. Tell me why you think your answer exposes you to criminal liability. You were there, and did some crime yourself? You were somewhere else, and did some crime at this other place?
I was buying crack in the alley, do I have to testify about what I saw while doing so? Or can I plead the fifth and get out of it?
You can plead the Fifth. The court can inquire why you’re exposed to criminal liability, privately, and decide it doesn’t agree with your concern, and order you to testify. Once you do, your testimony can’t be used to convict you of buying crack.
Thanks!
Slight tangent, but it does relate to the OP’s question:
Can one refuse for financial reasons?
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I witnessed a crime while away? Getting to court involves airplane, hotel, dining out, & multiple days of my limited vacation time, all at a significant expense to me. Will the prosecutor pay my expenses? Is the prosecutor allowed to pay my expenses? Can I make any reasonable demands around travel accommodations (next day flight back vs. red-eye right after testifying, which means an extra hotel night)?
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You’re a worker in the subsistence economy - You are working three minimum wage contract jobs & still barely making it paycheck to paycheck. The ½ or full day off is a financial hardship, especially if court is next week when you already lose 20% of your income due to US holiday when company is closed.
The federal courts (well, some US Attorney offices, to be more precise) have a program that pays something like $40 per day, plus travel reimbursement, if you have to testify as a subpoena’d witness. They also reimburse childcare under some circumstances.
In state court, I suspect it depends on the state.
In Florida, a witness in a civil case may refuse to appear (or more accurately, the witness may testify by deposition if: “(A) that the witness is dead; (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or (F) the witness is an expert or skilled witness.” Fla. R. Civ. P. 1.330.
The rules in criminal cases are broadly similar, except that a deposition can never be used in a criminal case if the defendant did not have the opportunity to cross-examine the witness (for example, if it was taken when somebody else had been charged with the crime).