Fifth Amendment Makes it Hard to Build a Case Against Flynn - The New York Times

Here is the legal analysis. Congress and the independent prosecutor need to work together.

"...Mr. Flynn’s lawyer earlier sought a grant of immunity in exchange for his client’s testimony, but that request has been refused so far. Congress learned a hard lesson when Oliver North received immunity to testify at the Iran-contra hearings, which eventually led to the dismissal of his convictions because the immunized testimony poisoned the government’s case against him.

Unlike his declining to testify, Mr. Flynn’s refusal to provide the documents involves a more obscure protection afforded to individuals by the Fifth Amendment subpoenaed for personal records.

The privilege against self-incrimination does not independently protect the content of documents, so one cannot refuse to turn them over just because they might be incriminating. The Supreme Court’s decision in 1976 in Fisher v. United States explained that it was “clear that the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence, but applies only when the accused is compelled to make a testimonial communication that is incriminating.”

But that does not mean records must always be provided in response to a subpoena. The court went on to explain that while the records themselves do not come within the protection of the Fifth Amendment, the act of turning them over may communicate information about their existence, possession and the authenticity of the documents. Known as the “act of production,” the Fisher case permits a defendant to refuse to turn over records if doing so would communicate information to the government that it did not already have.



In Mr. Flynn’s case, acknowledging that he has records related to contacts with the Russian government may be incriminating because his response to the subpoena could be used to establish his knowledge of their contents and prevent him from denying his connection to the transactions described in them. Thus, his act of producing documents could incriminate him, so he can refuse to turn them over to the Intelligence Committee.



That is not the end of the analysis, however, because there are three ways in which the government could still obtain the records — but none are particularly appealing.

First, the Fisher decision contains an important caveat to the availability of the Fifth Amendment to avoid producing documents. If the government can show their existence, possession and authenticity is a “foregone conclusion” so that investigators will not learn anything valuable from the act of production, then the privilege against self-incrimination dissipates and the records must be produced.

This is often a difficult standard to meet and the burden would be on the government to show it knew what records Mr. Flynn had in his possession and that they were authentic. Absent that proof when the subpoena was issued, he can then assert the Fifth Amendment to refuse to turn them over.

A second means to obtain records would be for Congress to ask the Justice Department to authorize immunity for the act of production, which would overcome the privilege against self-incrimination and require Mr. Flynn to turn the records over.



But that is perilous, as the prosecution of Webb Hubbell, the former associate attorney general, showed. Immunity covers not just actual use of the records produced pursuant to a subpoena, but also any “derivative” information gained from them.



After Mr. Hubbell pleaded guilty in 1994 to mail fraud and tax charges for overbilling clients in his private practice, the independent counsel investigating President Clinton subpoenaed additional records from him to see if he was being paid to remain silent about possible misconduct in the Whitewater matter.

When he asserted the Fifth Amendment in response, the independent counsel granted him immunity from prosecution so that he would have to turn over about 13,000 pages of records. He was subsequently charged a second time with mail fraud and tax violations.



The Supreme Court determined in United States v. Hubbell that any evidence traceable to those documents violated the protections afforded by the grant of immunity, which puts a witness in the same position as if the person refused to provide any information. The court upheld the dismissal of tax and fraud charges against Mr. Hubbell, finding that “the documents did not magically appear in the prosecutor’s office like manna from heaven.”



Mr. Mueller is sure to oppose any request to grant immunity to Mr. Flynn to compel him to produce his records because it may effectively insulate him from any criminal charge, depriving his investigation of any leverage it might have to get him to cooperate.



A third way to get the records would be for the Justice Department to obtain a search warrant, because the Fifth Amendment does not apply when the government seizes records pursuant to a warrant. But that is not an easy avenue; prosecutors would have to show there is probable cause the evidence relates to a crime and they have a reasonable basis about where the records are kept.



Congress cannot obtain a search warrant, only the Justice Department can. Mr. Mueller’s investigation is just beginning, so seeking a search warrant for Mr. Flynn’s records is unlikely at this early stage.

Congress could threaten to seek a contempt order for Mr. Flynn for his failure to comply with the subpoena, but that is unlikely to result in the production of any records. Moreover, that threat may be hollow because it would require the Justice Department to take the case before a Federal District Court judge, something prosecutors have been reluctant to do when the refusal is based on the Fifth Amendment..."



Fifth Amendment Makes it Hard to Build a Case Against Flynn - The New York Times