So, Flynn is refusing to supply documents citing the 5th Amendment. I thought that the 5th protected testimony, not documents. A quick Google search turned up United States v. Hubbell, which says that documents are only protected where the very act of producing the documents is incriminating in itself. That would seem to imply that the mere possession of the documents is an issue. Is that Flynn’s stance here? What if there were a search warrant to seize said documents? He certainly could’t refuse to turn them over then. I mean, he could, but they could be taken by force if their location was known. I assume congress doesn’t have the power to obtain search warrants but how about Special Counsel?
It would seem to me that if the content of the documents was self-incriminating, and he had the right to possess them, that the Fitfh might apply there.
IANAL, so, adjust for windage.
IANAL either but this seems to be it.
Imagine you have a diary where you write your personal thoughts. Handing that over to prosecutors is really no different than speaking to the prosecutors and incriminating yourself.
It would then seem the issue is who has the rights to those documents?
My understanding is the Fifth Amendment only protects you from self-incrimination. It doesn’t protect you from being incriminated by somebody or something other than yourself. You can’t conceal evidence just because it happens to be in your possession.
I’m not sure how a diary would be viewed. I’ll leave that to the lawyers.
I believe that the government has to prove that the documents he has in his possession are not his property. One way to obtain them is to issue a search warrant, which would be the next logical step. If they don’t issue a warrant then it could be a sign that they are fishing for evidence.
IANAL but… The fifth only protects against testimony. The court can demand any physical evidence (dented car, missing sheep, documents, diary, bank records) be presented for examination. The only proviso is that the subpoena has to specify what it is and that the person is (reasonably?) known to possess them.
“Give us any documents that show you are embezzling funds” doesn’t work; “give us all your bank account records” does. They can’t ask for your diary unless they know you have one. “give us any document relating to payments you received from Russian corporations in 2016” would work. “Give us all your business records” won’t.
Here’s some examples - a woman was committing some sort of mortgage crimes (embezzlement?) and her records were on an encrypted drive. She was recorded telling her husband that’s where the hidden files were - so at that point the court could demand she produce them. She refused to provide a password, claiming the fifth. It mnever got settled because her husband provided the password a few weeks later.
A fellow was crossing back into the USA from Canada, so the border patrol had him turn on his computer, they saw kiddie porn, and then arrested him. When they went back to look, his computer needed a password. He refused to provide it, citing the fifth. Again, no resolution if I recall, because he made a deal.
However, in both cases, the court’s excuse was they were looking for specific, known documents.
The opposite, would be “turn over your diary / passwords to you phone so we can dig through and look for something incriminating.” Latest court case, they need a warrant to search your phone.
But short answer - you already incriminated yourself when you wrote your diary or document or whatever. It’s no different than the court demanding you produce the gun registered to yourself, or bring in your car so they can look for dents. It’s something they know you have, and they can demand to look at it.
In the case of Flynn, however, we’re talking about testimony to a congressional committee. Not sure what their powers are.
Well, they can definately hold him in contempt.
Depending on what he’s been doing, that might be the lesser of two evils for him.
I’m not a lawyer but I don’t think that’s true.
If you’re suing a corporation, for example, the corporation might be subpoenaed to turn over records. Nobody would be arguing that the records were not the corporation’s property.
Fun fact: a corporation may not assert Fifth Amendment privilege.
Not necessarily. If he’s locked up for contempt for refusing to comply with the subpoena, he could stay locked up until he agrees to comply. It’s essentially an open-ended sentence. Seeing as he doesn’t face a death penalty, imprisonment is the worst case scenario for him if he is found guilty. So he would be going to prison in order to avoid being sent to prison.
Yet.
Seriously, I don’t think that’s an issue here. I was pointing out that ownership of documents is not an issue to a subpoena.
Whilst true, I can’t see that lasting more than one or two election cycles.
And you’re right.
I just saw a tangential opportunity to mention the no-Fifth-for-corporations thing.
You spoke too soon. From Reuters:
That’s some pretty creative lawyerin’, to be honest.
A lot of the thread has looked at judicial proceedings. It’s important to remember that Flynn was responding to a Congressional subpoena not one issued by a court. There’s some key differences. The wiki article on Contempt of Congress might be worth a look if we’re focused on Flynn’s case specifically.
So, question -
To be more specific - if items are subpoenaed for a criminal case, you produce them or you can be cited for contempt? (Then they get a warrant, go digging for them themselves… and if you disposed of them, knowing they were needed for a criminal case, or actively hid them once you knew or should have known, you can be charged with obstruction of justice?)
if it is for a civil case, no penalties but the fact that key documents were not produced can count against your case?
Generally, yes.
The conduct is just as contumacious in a civil proceeding, so you can also be cited for contempt. And the judge can impose all sorts of sanctions in the civil case, up to and including a directed verdict for the opposing side.
Can Congress issue search warrants instead of subpoenas D.T.?
Ironically, you can be punished more severely for violating the order in a civil case then you can be for being found guilty. You can’t be imprisoned as a punishment in a civil case. But you could be imprisoned for refusing to submit documents during a civil case.
On a separate note, I found out that H. Beatty Chadwick holds the record for being imprisoned due to contempt. He had been ordered to pay his ex-wife $2,500,000 in their divorce settlement. But he had sent the money out of the country and refused to authorize it being returned so his wife could receive it. So the judge ruled he was in contempt of a court order and locked him up until he complied. Chadwick still refused to turn over the money and ended up remaining in prison for fourteen years. He “won” in the sense that a judge finally released him on the grounds that the coercive effects of being imprisoned were clearly not going to motivate Chadwick to comply with the court’s order.
Hey, new word. Thanks Bricker. That fits my kid to a T. Will make her scratch her head for a while.