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Constitution Check: Who gets to decide if someone can “plead the Fifth”?

National Constitution Center

Lyle Denniston looks at the complications related to two former aides to New Jersey Governor Chris Christie, their claims of protection under the Fifth Amendment, and if investigators can compel them to produce documents like emails.

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THE STATEMENTS AT ISSUE:

“The [New Jersey] Select Committee on Investigations voted on motions Monday that could force two recipients of subpoenas to comply with orders to produce documents.  The two recipients – Bridget Kelly and Bill Stepien, former top aides to Gov. Chris Christie – have refused to provide documents, citing their Fifth Amendment rights against self-incrimination.  The committee voted that the documents sought were ‘necessary, proper, and relevant.’ ”

 – Ted Mann, reporter for The Wall Street Journal, in a story February 10 about subpoenas issued by a state legislative committee looking into the closings of traffic lanes on the busy George Washington Bridge leading from New Jersey into New York, supposedly as a kind of political retaliation by the Christie administration.

“Ms. Kelly’s attorney, Michael Critchley, said that his client would contest the committee’s motion.  ‘We’ll let the court make a decision as to who’s right or wrong,’ he said.  Mr. Stepien’s lawyer, Kevin Marino, said he provided the committee ‘a detailed explanation’ of their ‘objections to the subpoena.’ ”

Reactions of lawyers, as quoted in the Ted Mann story.

WE CHECKED THE CONSTITUTION, AND…

The Fifth Amendment is one of the trickier parts of the Constitution’s Bill of Rights.  It says simply that a person may not be “compelled in any criminal case to be a witness against himself.”  But taking each of the most important words out of that, and saying with any confidence what they mean, can be a challenge to the most sophisticated legal mind.

In what forums does a witness have that protection?  What does a witness (or a lawyer for a witness) have to say in order to gain the protection?  What kind of coercion amounts to compulsion?  What kind of evidence would put the individual at risk of prosecution?  How does one know what would be “incriminating” – that is, proof of a crime?  Is the claim limited only to what a witness might say, or something that could be learned from such statements? Does it apply only to what is said verbally, or does it also cover records?  And straddling all of those is the larger question: Who gets to define the answers?

Because the right at issue is constitutionally guaranteed, neither a criminal prosecutor, nor a grand jury investigating potential crime, nor a state legislative committee conducting an investigation of suspected wrongdoing, gets to provide the final answers.

Of course, a prosecutor or an investigating committee can short-circuit a claim of the Fifth Amendment privilege by giving the individual involved a promise of immunity if they agree to testify or to hand over records.  But that means anything that is produced under such a promise  – or leads derived directly from it — cannot be used to prosecute that individual.  (Even so, a promise of immunity can itself be tricky, because it may not assure absolute immunity if some independent evidence of crime were found against that same individual.)

Sometimes, of course, prosecutors and investigators will give someone a promise of immunity, or at least a promise of leniency, if that person is willing to provide vital evidence against someone else.  The Fifth Amendment does not shield one from the cooperation of a friend, neighbor, colleague, or associate; you can only invoke the privilege for yourself.

What is most complicated about “pleading the Fifth” is claiming that protection to head off a demand for records.  It is by no means clear that, if records are not really the personal papers of a specific individual, that the individual can claim the privilege for those papers, even if their revelation would be incriminating.  Again, the privilege is a personal one, not one that goes with one’s position, let us say.

If prosecutors or investigators identify on their own a specific set of papers, or a kind of document, and they can show that it is not personal to the individual who possesses it, the likelihood is that the Fifth Amendment protection would not apply.    That could well be what the New Jersey investigators have done with documents that they think will tell them something about the scandal over the George Washington Bridge traffic lane closures.  They already know about e-mail exchanges, for example, and they perhaps can get by with demanding the disclosure of the rest of the “thread” in such exchanges – especially if the writers of the e-mails composed them voluntarily.

But prosecutors or investigators cannot go on what is called a “fishing expedition,” by requiring an individual who is targeted by their investigation to identify the papers that would respond to what the investigation’s goal is.  The Supreme Court has ruled explicitly that an individual can “claim the Fifth” against a demand that he or she find the responsive papers, identify them, and then hand them over.  That is called, technically, the “act of production” and it is protected from compulsion.

If a subpoenaed individual refuses explicitly to comply with a demand for documents, that can set up a confrontation that is likely to wind up in the courts.  The investigator may seek to have that individual held in contempt, but only if the claim of privilege is outside what the Fifth Amendment protects.  The investigator can refuse to acknowledge that a document would be incriminating (as the New Jersey committee seems to have concluded about some of the papers it had demanded), but cannot actually compel its production unless the claim of privilege is found wanting by a court.

The risk for the investigator, of course, is that a court may be convinced that the demanded papers do, indeed, reveal potential criminal conduct, that they are thus covered by the Fifth Amendment, and that the only way their turnover can be demanded is by a grant of immunity.  That then may be an opening for a negotiation: What does a witness or a prosecutor have to swap in exchange for getting the documents?

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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