Category Archives: Fifth Amendment

The use of the death penalty in the Americas dates to the 15th century when European settlers brought with them the practice of capital punishment. Because nowhere in the US Constitution is capital punishment explicitly addressed, the death penalty was imbued with intrinsic constitutionality by the Founding Fathers. The Fifth Amendment, Eighth Amendment, and Fourteenth Amendment (due process clause) of the Bill of Rights have attempted to provide guidelines on how capital punishment should be handled. The Fifth Amendment states that no person shall be held to answer for a capital [crime], unless on a presentment or indictment of a Grand Jury, while the Eighth Amendment states that nor cruel and unusual punishments [be] inflicted.

Although the death penalty was viewed as an acceptable form of punishment at the time the US Constitution was created, it did not take long for various states to begin to limit or even ban such practices. The first state to do so was Michigan in 1846. Today, 31 states still permit capital punishment. Although this number may represent a majority of the states, it may not represent the true national mood regarding capital punishment because many of these states have not had an execution in more than 10 years.

Evolving standards

Over the years, the US Supreme Court has ruled on many cases that have addressed the topic of evolving standards of decency in regards to the Eighth Amendment. The 1910 Supreme Court case Weems v US helped define the notion of evolving standards as a basis to view historically accepted punishments as no longer acceptable in modern society. In the Weems case, a man was sentenced to multiple years of hard and painful labor [in chains] for the crime of falsifying documents.

Although the use of irons was common in the 1700s, the Court found that its use was not appropriate for a sentence in the 1900s. The term evolving standards of decency was coined by Chief Justice Earl Warren in Trop v Dulles (1958) when he noted that, when determining what punishment the Eighth Amendment prohibits, evolving standards of decency . . . mark the progress of a maturing society.1,2

The 1972 case of Furman v Georgia (1972) resulted in a brief national moratorium on the death penalty because of a 5 to 4 ruling that [the death penalty] could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.3 In an unusual scenario, each justice wrote his own opinion, with Justices Brennan and Marshall citing evolving standards of decency to explain why they believed the death penalty was unconstitutional.

The landmark cases of Atkins v Virginia (2002) and Roper v Simmons (2005) determined that because of evolving standards of decency, certain definable groups such as individuals with intellectual disability and minors could not be sentenced to death.4,5 In both instances, the Court, within a relatively short period, revisited the issue of an evolving standard after already having ruled on the issue, ie, execution of people with intellectual deficiencies previously addressed in Penry v Lynaugh (1989) and certain youths in Stanford v Kentucky (1989).6,7 The majority opinion for Atkins v Virginia, written by Justice Stevens, noted that the consistency of the direction of change, but not so much the number of these States [prohibiting the execution of individuals with intellectual disabilities], was important in determining an evolving standard.4

The cases of Atkins v Virginia and Roper v Simmons are particularly interesting because the opinions were based on legal as well as scientific and medical principles. The legal principles that were discussed included whether the death penalty had a deterrent effect for these populations and whether these populations were at a fundamental disadvantage in defending themselves in the court system against the ultimate irreversible punishment. In Atkins v Virginia, Justice Stevens wrote, . . . frequently [individuals with intellectual disability] know the difference between right and wrong and are competent to stand trial . . . [but] because of their impairments . . . by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.4

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The Death Penalty and Mental Illness: An Evolving Standard? - Psychiatric Times

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: Although a party or witness in civil litigation may invoke the Fifth Amendment, such invocation often comes at a high price, because, in contrast to the criminal context, the finder of fact in a civil case may draw an adverse inference against the party or witness who declines to provide evidence based on the Fifth Amendment privilege against self-incrimination. Recent decisions from the Southern District address when and how the Fifth Amendment can be invoked in civil litigation, and the ramifications to litigants when parties and non-party witnesses avail themselves of that privilege.

Edward M. Spiro and Judith L. Mogul are principals of Morvillo Abramowitz Grand Iason & Anello and co-authors of "Civil Practice in the Southern District of New York," 2d Ed. (Thomson Reuters 2016). Britton A. Kovachevich, an associate at the firm, assisted in the preparation of this article.

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Hurdles and Consequences to Asserting the Fifth Amendment in Civil Litigation - New York Law Journal (registration)

The U.S. Constitution guarantees the inalienable rights of citizens.

"You have the right to remain silent, and anything you say can and will be used against you in a court of law."

Those familiar words, part of an accused's Miranda rights (and a staple of police dramas), came into play in a grand fashion this week as Bridget Anne Kelly, a former aide to embattled New Jersey Gov. Chris Christie, chose to remain silent about her role in the now-infamous lane closures on the George Washington Bridge in September 2013.

In refusing to testify, Kelly exercised her Fifth Amendment rights, one of the original provisions of the U.S. Constitution's Bill of Rights. Though it's been part of U.S. law since 1791, many Americans are still confused when a defendant decides to "plead the Fifth." [8 Supreme Court Decisions that Changed US Families]

Innocent until proven guilty

The Fifth Amendment contains several familiar protections against government intrusion, including the clause against double jeopardy (trying a defendant more than once for the same offense), the right to due process of law (including a fair trial) and the right to just compensation when the government takes private property for public use.

The clause regarding self-incrimination was developed to prevent anyone from being forced to testify against themselves, leaving the burden of proving that a person has committed a crime to the government. Thus, the Fifth Amendment enshrines the maxim that someone is "innocent until proven guilty."

John Lilburne, an obstreperous political firebrand who lived in 17th-century England, is sometimes regarded as the godfather of the right to remain silent. When brought before the Star Chamber court for the crime of circulating Puritan pamphlets, Lilburne refused to take an oath that he would answer every question asked of him.

For his intransigence, Lilburne was publicly whipped, dragged through the streets behind an ox cart, gagged and throw in prison, where he continued to campaign for what he called the "freeborn rights" of all people the precursor to what are now called civil rights.

The Miranda Decision

It's been argued that James Madison, who would eventually serve as the fourth U.S. president, had the experience of Lilburne and other English law-enforcement practices including torture and forced confessions in mind when he penned the original words of the Fifth Amendment: "No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Madison took care to include the right to avoid self-incrimination in the Fifth Amendment, in part because several of the states did not include that protection in their original state constitutions.

This right was extended to U.S. citizens in a fundamental manner in the Supreme Court's 1966 Miranda v. Arizona decision. In that landmark ruling, the court found that the Fifth and Sixth Amendment rights of Ernesto Arturo Miranda had been violated after he was arrested and tried for rape and kidnapping.

While the Fifth Amendment protects an arrested person from being compelled to be a witness against himself (self-incrimination), the Sixth Amendment guarantees that a person will have access to legal counsel for his or her defense. It was deemed that Miranda was denied these rights.

Limits to the Fifth

Though the Fifth Amendment offers broad protections, there are limits to its use. An important exception was added in 1984, when the U.S. Supreme Court found, in New York v. Quarles, that if public safety is at immediate risk, a suspect's statements are admissible in court, even if his or her Miranda rights have not been explained.

And in an important child-abuse case, Baltimore City Department of Social Services v. Jacqueline Bouknight, the U.S. Supreme Court ruled in 1990 that a parent with limited custody rights cannot refuse to tell a judge the child's whereabouts. Protections against self-incrimination did not apply because of the immediate risk to the safety of the child.

Follow Marc Lallanilla on Twitter and Google+. Follow us @livescience, Facebook & Google+. Original article on Live Science.

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What Is the Fifth Amendment? | Plead the Fifth

Miami Herald

US magistrate OK's video surveillance of Overtown store Miami Herald Otazo-Reyes said the ordered surveillance does not violate Bradley's right to privacy, and that her claim under the Fifth Amendment's Takings Clause is not ripe for review by a court because she hasn't been denied all reasonable use of her property.

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US magistrate OK's video surveillance of Overtown store - Miami Herald

Educational Development Corporation Announces Record First Quarter Fiscal 2018 Revenues and Fifth Amendment Loan Agreement

TULSA, Okla., June 15, 2017 -- Educational Development Corporation (EDC) (NASDAQ:EDUC) (http://www.edcpub.com) today reports record first quarter fiscal 2018 unaudited net revenues.

Randall White, CEO of Educational Development Corporation, announced that the Company has had record first quarter revenues of fiscal 2018, totaling approximately $27.8 million. This revenue level represents an increase of $5.0 million, or 22% over the first quarter fiscal 2017 revenues of approximately $22.8 million.

Per Mr. White, Our first quarter double digit growth reflects continued strong demand for our products and the success of our sales teams. To ensure we are capable of handling our continued growth, our management team has recently approved a capital expansion project that will further automate to our Tulsa, OK distribution facility and expand our daily shipping capacity by as much as 100% over last years capacity levels.

We have also recently executed a new amendment with our existing lender which immediately expands our working capital facility from $7.0 million to $10.0M and allows us, upon lender approval, to grow this facility to $15M to support our continued growth in inventory and sales. This new amendment also includes a $3.0M Advancing Term Loan facility which will be used to finance our recent capital expansion project.

We continue to be grateful to all of our stakeholders that continue to support us during this very dynamic time in the Companys history.

About Educational Development Corporation

EDC is a publishing company specializing in books for children. EDC is the sole American distributor of the UK-based Usborne Books and owns Kane Miller Books, specializing in childrens literature from around the world. EDCs current catalog contains over 2,300 titles, with new additions semi-annually. Both Usborne and Kane Miller products are sold via retail outlets and by direct sales consultants nationally.

Cautionary Statement for the Purpose of the Safe Harbor Provision of the Private Securities Litigation Reform Act of 1995.

The information discussed in this Press Release includes forward-looking statements. These forward-looking statements are identified by their use of terms and phrases such as may, expect, estimate, project, plan, believe, intend, achievable, anticipate, continue, potential, should, could, and similar terms and phrases. Although we believe that the expectations reflected in these forward-looking statements are reasonable, they do involve certain assumptions, risks and uncertainties and we can give no assurance that such expectations or assumptions will be achieved. Known and unknown risks, uncertainties and other factors may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to, our success in recruiting and retaining new consultants, our ability to locate and procure desired books, our ability to ship the volume of orders that are received without creating backlogs, our ability to obtain adequate financing for working capital and capital expenditures, economic and competitive conditions, regulatory changes and other uncertainties, as well as those factors discussed in our Annual Report on Form 10-K for the year ended February 29, 2016, all of which are difficult to predict. In light of these risks, uncertainties and assumptions, the forward-looking events discussed may not occur. All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements in this paragraph and elsewhere in our Annual Report on Form 10-K for the year ended February 29, 2016 and speak only as of the date of this Press Release. Other than as required under the securities laws, we do not assume a duty to update these forward-looking statements, whether as a result of new information, subsequent events or circumstances, changes in expectations or otherwise.

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Educational Development Corporation Announces Record First Quarter Fiscal 2018 Revenues and Fifth Amendment ... - EconoTimes

A panel of appellate judges listen to arguments in the appeal of the conviction of former St. Rose High School baseball coach Bart McInerney. Doug Hood

Former St. Rose baseball coach Bartholomew McInerney testifies during his trial in the courtroom of Hon. Anthony J. Mellaci Jr. at the Monmouth County Courthouse in Freehold. Photo by BRADLEY J. PENNER/staff photographer. Freehold -- 01/19/10 -- ## MCINERNEY ##(Photo: BRADLEY J. PENNER/Asbury Park Press)Buy Photo

FREEHOLD -Bartholomew McInerney wants a jury to hear that he didnt derive any sexual thrills from the sex talks he had with the teenage boys he coached in baseball for St. Rose High School in Belmar.

But appellate judges have ruled that if Coach Bart wants jurors to hear that, hell have to tell them himself.

Judges Carmen H. Alvarez, Thomas V. Manahan and Allison E. Accurso of the Appellate Division of Superior Court ruled last week that McInerney cannot introduce his own testimony from his 2010 child endangerment trial at his upcoming retrial just because he now plans to invoke his Fifth Amendment right to remain silent.

McInerney, former baseball coach for St. Rose High School, is being retried on 10 counts of child endangerment. The allegations against McInerney, known as Coach Bart, include that he told his players on the baseball team to pleasure themselves and offered them money to send him text messages with details of their sex acts.

More: Lawyer: Coach Bart got "no sexual thrill''

McInerney testified at the 2010 trial that he had the sex talks with his players in an attempt to keep them from getting their girlfriends pregnant, his attorney, Edward C. Bertucio, said at a prior hearing.

Bertucio told the appellate judges in February he wanted to introduce the prior testimony at McInerneys new trial to show there was no sexual purpose or no sexual thrill to what he was doing.

Since the appellate panel shot that down, Bertucio, of the Eatontown law firm Hobbie, Corrigan and Bertucio, said he plans to ask the state Supreme Court to hear an appeal of the ruling.

The allegations against McInerney, 50, of Spring Lake, emerged in 2007 after he took some of the St. Rose baseball players to Alaska and Hawaii for tournaments. The following year, one of his former players, Andrew M. Clark, died when he stepped in front of an oncoming train. Clarks family later received a $900,000 settlement in a wrongful death lawsuit against McInerney, St. Rose and the Diocese of Trenton.

More: Coach, school settle suit over player's suicide

At McInerneys trial in Superior Court in Monmouth County in 2010, he was convicted of 10 counts of child endangerment and sentenced to 18 years in prison. An appellate panel in 2012 overturned his conviction and sentence, saying the trial judge gave confusing instructions to the jury.

McInerney was set to be retried on the charges in Middlesex County last year when the Monmouth County Prosecutors Office filed an appeal with the Appellate Division of Superior Court of a pretrial ruling by Judge Pedro Jimenez. Jimenez ruled that McInerney would be allowed to introduce his 2010 trial testimony.

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At the February appellate hearing, Monica do Outeiro, an assistant Monmouth County prosecutor, argued that prior testimony should be excluded from the new trial because it is hearsay.

Bertucio argued the prior testimony should be allowed because it falls under an exception that allows hearsay evidence if a witness isnt available to testify. He argued that his client wont be available to testify at the retrial because he plans to invoke his Fifth Amendment right to remain silent.

Watch the oral arguments at the appellate hearing in the video above.

The appellate panel, in a published opinion that other judges can reference in their own decisions, ruled otherwise and said McInerneys prior testimony cant be used at the new trial if he is the person who is making himself unavailable to testify.

The appellate judges, in an opinion written by Alvarez, said a defendants Fifth Amendment right does not take precedence over the basic rule of our adversary system that a defendant who seeks to testify and offer exculpatory statements must face cross-examination.

Bertucio said he disagrees.

We believe Judge Jimenez was correct under the law,"the defense attorney said. This was an evidentiary ruling, which gives Judge Jimenez broad discretion, and he was well within his discretion. We will file an appeal very shortly."

Kathleen Hopkins: 732-643-4202; Khopkins@app.com

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Judges: 'Coach Bart' can't use old sex talk testimony in new trial - Asbury Park Press

SAN FRANCISCO (CN) A federal judge Wednesday was unmoved by accusations that hed forced Uber to fire its star engineer Anthony Levandowski for refusing to deliver evidence that could prove Levandowski and Uber stole trade secrets from its driverless car rival Waymo.

The accusation came from Levandowskis attorneys at a hearing on his motion to intervene in Waymos lawsuit, accusing him and Uber of stealing its technology to build a competing self-driving car.

Levandowski sought to interveneto request modifications to a May 15 provisional relief order from U.S. District Judge William Alsup, to clarify that Alsup had not ordered Uber to fire him if he refused to waive his Fifth Amendment rights and produce key evidence in the case.

Alsup ruled from the bench that Levandowskis May 18 motion is moot, based on assurances from Uber attorney Karen Dunn that Uber fired Levandowski on its own initiative, not based on Alsups order.

Uber told Levandowski in a May 26 letter that it had fired him from his job leading Ubers driverless car program for not cooperating with its internal investigation into Waymos allegations, and announced the firing publicly on May 30.

I issued a very fine-tuned preliminary injunction order and Im not going to take back one word on that, Alsup said Wednesday.

Fearing criminal prosecution, Levandowski invoked his Fifth Amendment rights against self-incrimination to avoid producing documents or answering questions about them at his deposition, a motion Alsup denied.

In his provisional relief order, Alsup directed Uber to make Levandowski return thousands of files he stole from Waymo before resigning to work for Uber, writing that Levandowki had likely concealed troves of self-incriminating evidence by invoking his Fifth Amendment rights. Earlier this week, U.S. Magistrate Judge Jacqueline Scott Corley ruled that a due diligence report purportedly related to the stolen files which both Levandowski and Uber have fought to keep private under attorney-client and work product privilege must be produced.

Waymo, a Google spinoff, says Levandowski downloaded 14,000 confidential files from its server just before he resigned in January 2016 to form a competing driverless car company called Otto, which Uber quickly acquired. The files include information on Waymos secret LiDAR system, a laser-based scanning and mapping technology its driverless cars use to see their surroundings.

Waymo sued Uber and Otto in February, claiming Levandowski used its technology to set up Otto, and that Uber snapped up Otto to get its hands on Waymos technology to fast-track its floundering driverless car program. It did not name Levandowski as a defendant.

On Wednesday, Levandowskis attorney Miles Ehrlich told Alsup that his provisional relief order had forced Levandowski to choose between his job at Uber and waiving his Fifth Amendment rights, because it required Uber and Otto to exercise the full extent of their corporate, employment, contractual, and other authority to force Levandowski to produce the stolen files and tell Uber what he did with them after leaving Waymo.

Levandowski said in his motion that the judges order meant that Uber would be held in contempt had Levandowski refused to waive his Fifth Amendment rights and Uber not fired him, since it would fail to measure up to the courts command that Uber exercise every lawful power it has over Mr. Levandowski.

Ehrlich said Wednesday that Alsups order is an unconstitutional state action that requires correction. He said the state cannot force people to self-incriminate on pain of losing their jobs, but Alsup had forced Levandowski to do so by coercing, or at least providing significant encouragement to Uber to fire him if he did not cooperate.

We are required to addresses the injury that is still ongoing, Ehrlich told Alsup. The injury is not being fired; the injury is being forced by state action to this unconstitutional choice. All of us understood you to be saying that Uber fire every bullet it had against Mr. Levandowski to waive his Fifth Amendment right.

Ehrlich said that Uber had kept Levandowski on as an employee throughout the litigation, had not demanded that he waive his Fifth Amendment rights, and had not threatened to fire him if he refused to do so, until Alsup delivered his order. And that according to Alsup himself, the first of two letters Uber sent to Levandowski about his job status after Alsup issued the order blamed the judge, meaning me, and said the judge is making us do this, were going to fire you unless you cooperate with this investigation.

Responding to Alsups concern about whether Uber fired Levandowski on its own initiative, Uber attorney Dunn told the judge that Uber fired Levandowski because he had ignored an internal deadline Uber set for him to turn over evidence.

It is very hard to look at this entire situation and pretend the court order doesnt exist, Dunn said. The courts order certainly provided substantial additional heft to what we had been urging, and the letters made clear that this has to do with our urging, in addition to the courts order.

Turning to Levandowskis state action argument, Alsup said that though a government employer cannot use the Fifth Amendment to threaten to fire employees who do not cooperate with an investigation, a private employer, like Uber, can.

Sometimes on a preliminary injunction you can order remedial relief that is something that the other side may not be strictly entitled to but is necessary in order to remedy the wrong that has been done. There is broad equitable power to carry out what is the right thing to do, Alsup said. So a federal district court surely has the authority, as part of remedial provisional relief, to order a private company to do something that it would have the authority to do on its own.

The Fifth Amendment is not a bar to the relief granted, and Im not taking back a single word of it, and its not going to be modified in any way.

Also Wednesday, Alsup heard Ubers motions seeking to staythe case while it appeals to the Federal Circuit his denial of its motion to force arbitration, and to dismissWaymos state Unfair Competition Law claim.

Ruling from the bench, Alsup denied the motion to stay, saying a stay would harm Waymo.

But he indicated he would grant Ubers motion to dismiss Waymos unfair competition claim based on Silvaco Data Systems v. Intel Corp. In that case, California trial and appeals courts found that using infringing software is not trade secret infringement.

Uber says Waymos unfair competition claim (UCL) and its California Uniform Trade Secrets Act (CUTSA) claim are based on the same allegations, and that the UCL claim is pre-empted by CUTSA.

I want you to know Im stuck with the Silvaco case, Alsup told Waymo attorney James Judah, though the judge said he believes Silvaco was wrongly decided. Im sympathetic to your position, but youre going to lose your motion.

I feel like youve got to go to the Legislature and get them to fix this, but I cant fix it for you.

Ehrlich is with Ramsey & Ehrlich in Berkeley; Dunn with Boies Schiller Flexner in Washington, D.C.; and Judah with Quinn Emanuel Urquhart & Sullivan in San Francisco.

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Judge Won't Budge on His Order in Waymo v. Uber Trade Secrets Case - Courthouse News Service

The law lags badly behind technology in a great many areas. One area where there is still huge uncertainty is whether the Fifth Amendment right against self-incrimination protects someone who refuses to disclose the passcode to their phone.

Weve seen conflicting rulings in the past, and a Miamireport shows that rulings may even vary between courts in the same state

TheMiami Herald reports that a child abuse suspect was jailed for six months for contempt of court after failing to reveal the correct passcode to his iPhone. Christopher Wheeler was arrested on suspicion of hitting and scratching his young daughter, with police believing that photos on the iPhone would help prove their case.

Detectives believe that his phone contains images of repeated injuries to the child, which could prove evidence in the case. A Broward judge earlier authorized a search warrant for Wheelers iPhone, but detectives had been unable to get in.

When a judge ordered him to provide the pass code, it didnt work. Rothschild held him in criminal contempt earlier this month.

Wheeler claimed he had given police the code and didnt know why it didnt work. The judge ruled that he would be released from jail if he reveals the correct code.

In a separate case in the same state, aMiami-Dade judge decided against holding a suspect in contempt of court for similarly refusing to reveal his passcode. Extortion suspectWesley Victor claimed that he didnt remember his passcode, and the judge ruled that there was no way to know given the passage of time.

[Wesley Victor was] accused of extorting a social-media celebrity over stolen sex videos. [He] and his girlfriend had been ordered by a judge to produce a pass code to phones suspected of containing text messages showing their collusion in the extortion plot. Victor claimed he didnt remember the number. He prevailed.

On Tuesday, Miami-Dade Circuit Judge Charles Johnson ruled that there was no way to prove that Victor actually remembered his pass code, more than 10 months after his initial arrest.

Back in 2014, a Virginia District Court ruledthat phone passcodes are protected by the 5th Amendment, though there is no such protection against using a suspects fingerprint to unlock a phone. Another Florida court took the opposite stance, insisting that the 5th Amendment does not apply to passcodes.

The legal position on using Touch ID to unlock a phone seems clearer, where multiple court rulings have decided that a fingerprint is the equivalent of a safe key, and police are free to use a suspects fingerprint to unlock the device. You can read a 2014 analysis of the legal position of both forms of protection here.

Via Engadget. Photo: MacWorld.

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Man jailed for refusing to disclose iPhone passcode underlines Fifth Amendment uncertainties - 9to5Mac

Individuals have a broad right to refuse to testify before Congress by invoking the Fifth Amendment right against self-incrimination, the Congressional Research Service explained last week.

Even a witness who denies any criminal wrongdoing can refuse to answer questions on the basis that he might be ensnared by ambiguous circumstances.

On the other hand, the scope of the Fifth Amendment privilege applies more narrowly when it comes to a congressional demand that a witness produce documents. The Supreme Court has made clear that the mere fact that the contentsof a document may be incriminating does not mean that the document is protected from disclosure under the Fifth Amendment.

See The Fifth Amendment in Congressional Investigations, CRS Legal Sidebar, May 26, 2017.

Other new and updated products from the Congressional Research Service include the following.

Presidents FY2018 Budget Proposes Cuts in Public Health Service (PHS) Agency Funding, CRS Insight, May 24, 2017

President John F. Kennedy Assassination Records Collection: Toward Final Disclosure of Withheld Records in October 2017, CRS Insight, May 26, 2017

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The Fifth Amendment in Congressional Investigations - Secrecy News (blog)

Former national security adviser Michael Flynn seemingly wont comply with congressional subpoenas to produce records related to a Senate investigation. Whats the constitutional basis for this controversy and can the Senate hold Flynn in contempt?

On Monday, Flynns lawyers said he wouldnt act on a subpoena from the Senate Intelligence Committee, which asked the retired Lieutenant General to supply a list of contacts he had with any Russian officials between June 16, 2015, and Jan. 20, 2017. Flynn was one of four people involved with President Donald Trumps campaign compelled to produce records by the committee.

Then on Tuesday, the Senate issued two new subpoenas to Flynn related to consulting businesses run by Flynn before he became national security adviser. Committee chairman Richard Burr of North Carolina said the committee sought "very specific"information in Flynns business records.The Senate wants Flynns testimony and documents related to its investigation of possible Russian interference in the 2016 general election.

Flynns legal team believes the act of producing the records will have the same effect as live testimony by Flynn about events that could potentially incriminate him. "Producing documents that fall within the subpoena's broad scope would be a testimonial act, insofar as it would confirm or deny the existence of such documents, they said on Monday. The attorneys also claimed that Robert Muellers appointment to lead a Justice Department investigation on similar grounds was another reason for Flynn to consider his constitutional right not to testify.

At the heart of the controversy are 13 words that make up part of the Fifth Amendment, which state that no person shall be compelled in any criminal case to be a witness against himself.

The broad powers of the Constitutions Article I have long been seen as allowing a body like the Senate to conduct such investigations. The specific congressional power to issue subpoenas was defined in the 1920s in the wake of the Teapot Dome scandal. In McGrain v. Daugherty (1927), the Supreme Court said that, Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain that which is needed. The Supreme Court in 1927 also cited examples where contempt powers for people who didnt honor subpoenas dated back to the British parliament and colonial legislatures that existed before the Constitution was ratified.

Over the years, the Supreme Court has ruled that the Fifth Amendment privilege against self-incrimination applies to people testifying before Congress as part of an investigation, and in some cases, requests for records could fall into that protected category. These precedents would allow a person in appearing before Congress to take the Fifth in front of investigators and committee members, as well as to claim that producing documents isprotected by the Fifth Amendment.

In general terms, Constitution Daily Supreme Court correspondent Lyle Denniston explained these limitations in an article we published in 2014 about a Fifth Amendment claim in the New Jersey Bridgegate cases.

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 ones position, Denniston explained.

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.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 investigations goal is, Denniston added. 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.

A recent Congressional Research Service report, just issued two weeks ago, cites several examples where the Supreme Court has considered the issue of producing documents under subpoena. The privilege protects a witness against being compelled to testify but generally not against a subpoena for existing documentary evidence. However, where compliance with a subpoena duces tecum would constitute implicit testimonial authentication of the documents produced, the privilege may apply, the CRS says. (A subpoena duces tecum is a request for a witness to produce documents in court or at a hearing.)

The CRS cites several cases where the production of business records was at issue, and Flynns attorneys named a more-recent Supreme Court decision in their letter to Senate investigators, United States v. Hubbell. In an 8-1 decision, Justice John Paul Stevens in his majority decision tackled one of two questions related to Webster Hubbells involvement in the Whitewater controversy: Whether the Fifth Amendment privilege protects a witness from being compelled to disclose the existence of incriminating documents that the government is unable to describe with reasonable particularity.

It was unquestionably necessary for respondent to make extensive use of the contents of his own mind in identifying the hundreds of documents responsive to the requests in the subpoena, Stevens said back in 2000. The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.

In sum, we have no doubt that the constitutional privilege against self-incrimination protects the target of a grand jury investigation from being compelled to answer questions designed to elicit information about the existence of sources of potentially incriminating evidence. That constitutional privilege has the same application to the testimonial aspect of a response to a subpoena seeking discovery of those sources, Stevens concluded.

For now, the Senate is awaiting comment from Flynns attorneys. But in past cases where the Senate has sought contempt charges, the process has been slow and not always successful.

In one scenario, Flynn also could be charged under a criminal contempt statute, which would send the matter to the executive branch for criminal prosecution. That would put the ball in the court of Attorney General Jeff Sessions to consider contempt of Congress charges. The Senate also can rely on the judicial branch to enforce a congressional subpoena under a civil judgment from a federal court. If Flynn didnt comply, he could face contempt of court charges and not contempt of Congress charges.

As for Flynn or anyone facing jail time if found in contempt of Congress, the last person to receive a prison sentence in a related case was Rita Lavelle in 1983. The former EPA official won her contempt case in court, but she was found guilty on a perjury charge and served a short sentence.

According to CRS, at least six people have faced contempt charges made by the Senate in civil court since 1979, but the Senate hasn't used that power in the case of an executive branch official who refused to comply with a subpoena.

Scott Bomboy is the editor in chief of the National Constitution Center.

Filed Under: Fifth Amendment

Read more:
Understanding Michael Flynn's Fifth Amendment case - Constitution Daily (blog)