Any lawyers care to weigh in on Stepian using the Fifth Amendment on a document subpoena?

[markpkessinger]

The lawyer for Bill Stepian, Chris Christie's campaign manager, has announced that Stepian will invoke the Fifth Amendment and not comply with the subpoena demanding production of certain documents, which he received from the NJ legislature's joint committee investigating the GW Bridge access lane closings and related scandals. It sounded strange to me that he could do that, so I started trying to research the question myself. I came across the article below in the online journal, California Lawyer. If I am reading the article correctly, it sounds to me like Stepian is on very shaky legal ground in invoking the Fifth Amendment to avoid producing documents. Is my understanding correct?

[font size=5]Taking the Fifth with Documents[/font]
by Anthony A. De Corso | March 2012

< . . . . > (T)here is no Fifth Amendment privilege to refuse to produce subpoenaed documents on the ground their contents are self-incriminating; courts hold that such information is not "compelled testimony." However, as explained below, there is a crucial corollary: In certain circumstances the act of producing such documents may indeed be entitled to protection under the Fifth Amendment. - See more at: http://www.callawyer.com/Clstory.cfm?eid=920910#sthash.YO0uURU3.dpuf

< . . . . >

Fifth Amendment Privilege
Well-established case law holds that if a person voluntarily creates and possesses self-incriminating documents, he or she may nevertheless have to produce them in response to a subpoena. That is the law notwithstanding the privilege against self-incrimination, because the creation of such documents is not "compelled" within the meaning of the Fifth Amendment. (See Fisher v. United States, 425 U.S. 391, 409-410 (1976).) Even so, the act of producing documents may compel a person to implicitly or inherently admit that responsive papers exist, are in that person's possession or control, and are authentic. In such circumstances, the production of documents is testimonial and, because compelled, may be privileged under the Fifth Amendment. Whether the privilege applies turns on whether the act of production is likely to be incriminating. (See United States v. Hubbell, 530 U.S. 27, 36-37 (2000) (affirming dismissal of charges, based on Fifth Amendment violation.)

< . . . . >

Business Entities
Under the "collective entity doctrine," the Fifth Amendment privilege does not apply to artificial entities (such as corporations) or to their custodian of records who claims that producing documents will incriminate the custodian personally. Such entities act only through agents. Allowing these agents to assert the privilege as to the production of the entities' records would effectively extend the privilege to the entities themselves. (See Braswell v. United States, 487 U.S. 99 (1988).) Moreover, when individuals voluntarily assume the custodian position, they take on the duty to produce its records upon proper demand (Braswell, 487 U.S. at 109-10 (applying collective entity rule to president/sole shareholder of small corporation); United States v. Blackman, 72 F.3d 1418, 1426-27 (9th Cir. 1996) (applying same rule to defendant partner of law firm)). - See more at: http://www.callawyer.com/Clstory.cfm?eid=920910#sthash.YO0uURU3.dpuf
Well-established case law holds that if a person voluntarily creates and possesses self-incriminating documents, he or she may nevertheless have to produce them in response to a subpoena. That is the law notwithstanding the privilege against self-incrimination, because the creation of such documents is not "compelled" within the meaning of the Fifth Amendment. (See Fisher v. United States, 425 U.S. 391, 409-410 (1976).) Even so, the act of producing documents may compel a person to implicitly or inherently admit that responsive papers exist, are in that person's possession or control, and are authentic. In such circumstances, the production of documents is testimonial and, because compelled, may be privileged under the Fifth Amendment. Whether the privilege applies turns on whether the act of production is likely to be incriminating. (See United States v. Hubbell, 530 U.S. 27, 36-37 (2000) (affirming dismissal of charges, based on Fifth Amendment violation.)

< . . . . >

[Are_grits_groceries]

1. Nice try. nt

[markpkessinger]

2. uh, what?

Is that directed at Stepian's lawyer, or to my OP?

[Are_grits_groceries]

5. Stepien's lawyer. Sorry! nt

[markpkessinger]

6. No problem -- thanks for clarifying! n/t

[DURHAM D]

3. I am not an attorney but I saw several on my TV last night

who said he could not use the 5th for documents. Seems he is buying time.

[markpkessinger]

4. That makes sense. n/t

[Blue_In_AK]

7. I worked in the legal biz for almost 30 years

and I suspect that Mr. Stepian will be receiving some sort of motion to compel shortly. I don't think he can refuse a subpoena. At least I've never seen anyone be successful with a refusal.

[Gothmog]

10. There has been a subpoena

The next step will be a show cause proceeding in state court. That may take some time but I doubt that Septien will win this argument

[1StrongBlackMan]

18. And, girlfriend is in a trick bag ...

as her refusal to produce forces her to argue in the Show Cause that there is something out there likely to incriminate her, either for the instant matter, or something entirely different. IMO, her refusal to produce was a stupid play, as it telegraphs that there is something out there.

Should she prevail in the Show Cause, I anticipate some very, very late nights of the juniors, as they search every document received from the other subpoena recipients, for the terms, "Brigit" and/or "Kelly." Followed by either a second round of SDTs or an indictment of Kelly.

[Bandit]

31. Don't you remember all the subpoenas refused from the Bush* cronies and even Sarah Palin

refused to comply with subpoenas along with her husband Todd. Nothing was ever done to any of them because everyone knows Republicans are above the Law.

[Gothmog]

8. Testimony by Production is a hard argument to win

I skimmed the 19 page letter from Septien's attorney. The concept is that the production of documents is in effect compelled testimony. Legally this concept is called testimony by production. I have not read the cases cited but this seems like a hard argument to win

[Gothmog]

9. There has been some recent opinions on this issue with respect to off-shore accounts

The article cited in the OP is excellent. I read this article over the weekend and I doubt that Septien's attorney is going to be successful in his opposition to the subpoenas.

I also found this article dealing with off-shore bank accounts http://www.forbes.com/sites/insider/2013/02/27/required-records-the-act-of-production-and-secret-offshore-accounts/

In its ongoing battle to eradicate the use of offshore accounts to conceal assets (and evade taxes), the government has served subpoenas on numerous taxpayers who it suspects have (or had) undisclosed offshore accounts. These subpoenas seek information under an obscure requirement that individuals keep records relating to their offshore accounts. Of course, many recipients of these subpoenas face the very quandary the Fifth Amendment was designed to protect against: producing documents in response to the subpoena would concede that they violated the reporting requirements applicable to offshore accounts.

Over the last 18 months, four federal Courts of Appeals (chronologically, the Ninth, Seventh, Fifth and Eleventh Circuits) have considered the issue and all four have rejected the taxpayers’ attempts to invoke the Fifth Amendment, concluding that the “required records” doctrine trumps the “act of production” privilege. As I wrote after the first of these decisions (and at a time when federal courts were split on the issue), this conclusion is principally predicated on the perception that the record-keeping requirement is “essentially regulatory” and that the conduct at issue was not “inherently criminal.”

Right now, I do not think that Septien's attorney is going to be successful in resisting these subpoenas

[1StrongBlackMan]

19. Just playing the "friendly advocate" ...

(I hate the term "devil's advocate&quot ... a point of distinction, the documents requested in the subpoena, are not required records"; but rather, records he created of his own accord.

I have no doubt that they are presenting a loser argument ... possible hoping that the damning documents will come out from someone else, at which point the singing (for immunity) starts.

[Skittles]

11. love love LOVE threads with lawyer input

I get so confused reading the news regarding this issue and really appreciate their posts - come on guys and gals, let's hear it!

[spanone]

12. if my employers asks for information, can i invoke the 5th?

[Gothmog]

14. 5th is only for criminal matters

The 5th amendment can be invoke in civil cases but only when there is a chance for criminal proceedings. Unlike a criminal case, you can comment on and use the fact that a witness invoked the 5th amendment in a civil case. OJ was not allowed to invoke the 5th in his civil case and had to testified which is why the jury found him liable in that case.

If your employer asks for information, you can refuse and your employer can fire or sue you. Your employer has no legal right to force you to testify and your employer's main remedy is to terminate your employment

[spanone]

16. interesting.

[malthaussen]

29. Which was pretty much how HUAC was able to find contempt...

... in the Red trials, wasn't it? Although presumably contempt of congress is not quite the same as contempt of court, the argument used was that being a Communist was not a criminal act, and therefore not protected. Which was, ya gotta say, a pretty nifty little bit of hypocrisy.

-- Mal

[Trekologer]

17. The Constitution/Bill of Rights protects you from the government, not private individuals

For instance, the 1st Amendment protects your right to free speech in so much as the government cannot prevent you from expressing it. However, a private party (such as this forum), is free to deny you from using it.

[Historic NY]

13. Lets ask Gardner?

Petitioner's income tax returns, in which he revealed himself to be a gambler, were introduced in evidence, over his Fifth Amendment objection, as proof of the federal gambling conspiracy offense with which he was charged.

Held: Petitioner's privilege against compulsory self-incrimination was not violated. Since petitioner made incriminating disclosures on his tax returns instead of claiming the privilege, as he had the right to do, his disclosures were not compelled incriminations. Here, where there is no factor depriving petitioner of the free choice to refuse to answer, the general rule applies that, if a witness does not claim the privilege, his disclosures will not be considered as having been "compelled" within the meaning of the Fifth Amendment. United States v. Sullivan, 274 U. S. 259. Miranda v. Arizona, 384 U. S. 436; Mackey v. United States, 401 U. S. 667; Garrity v. New Jersey, 385 U. S. 493, distinguished. Pp. 424 U. S. 650-655.
501 F.2d 228, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN, J., joined, post, p. 424 U. S. 666. STEVENS, J., took no part in the consideration or decision of the case.
Page 424 U. S. 649

[Gothmog]

15. The 5th amendment does not generally work against the IRS

You have an obligation to file and produce tax returns and such tax returns are never privileged in a proceeding before the IRS

[1StrongBlackMan]

20. I.e., ... the Required Records Doctrine? eom

[okaawhatever]

22. Do you think Christie will try to claim executive privilege or work product? Just curious. nt

[Laxman]

23. He Will Absolutelty Claim...

executive privilege. He's going to have to turn over ordinary records right away though and I believe there will be some damaging information in just the briefing books and activity logs. However, ultimately its going to be all the other stuff that gets him. The GWB will seem like a side show when this is all over.

[okaawhatever]

24. Thanks for that. nt

[Laxman]

21. He Is Stalling...

for time. The committee is out ahead of the U.S. Attorney here. What happens at the committee is not important to Stepien. What the U.S. Attorney is doing means everything. He can make a colorable claim of privilege (meaning it at least passes the laugh test) right now while he either forms his defense or cuts a deal with the U.S. attorney.

This also means that his lawyer believes there is a real threat of criminal prosecution. This isn't a move made lightly. If he had nothing to hide, he turns this stuff over, everything plays itself out. It may be embarrassing or troubling but there would be no threat of prosecution. This is a sign that there is something dangerous to Mr. Stepien (and probably other potential defendants) out there.

[JimDandy]

25. The danger is to Kelly. She is the defendant and Stepien is her lawyer.

[Lex]

26. I don't think it applies to document production.

If he's found to be in contempt, he might be sitting in jail soon.

[Gothmog]

27. Here is a good explanation of the Act of Production doctrine

Generally the act of production and the concept of testimony by production only applies when (i) when the existence of the document in questions is unknown and (ii) the act of producing the document is in effect testimony as to the accuracy, authenticity and authorship of the document. If the existence of the document in question is a foregone conclusion, then the act of production privilege does not exist. Here is a good explanation of this concept http://www.lrrlaw.com/files/Uploads/Documents/Gilson_ActofProduction_CrimLitNL.pdf

Both Kelly and Septien rely on the Hubble case where Webster Hubble produced 13,000+ pages of documents that the government could not describe adequately to subpoena such documents that were produced pursuant to a grant of immunity. The SCOTUS held that the government did not prove that it was not a forgone conclusion that these document existed. http://sol.lp.findlaw.com/1999/hubbell.html

Here, by way of the contrast, "the Government has not shown that it had any prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents ultimately produced by the respondent." Thus, "[w]hatever the scope of this ‘foregone conclusion’ rationale, the facts of this case plainly fall outside of it."

In short, Hubbell’s act of producing the subpoenaed documents pursuant to an immunity order and of answering the standard custodial questions as to whether he had produced all of the requested documents, fell squarely within the ambit of Kastigar. Accordingly, the Government would have to meet the stringent Kastigar test in order to proceed to trial. This the Government was, by its own admission, unable to do.

I think that the existence of e-mails from a private account used by Kelly and Spetien are foregone conclusions and that the act of production doctrine does not apply. I really doubt that the act of production doctrine will protect these documents in that the government knows that Septien and Kelly had sent e-mails on this topic and there are other e-mails that are in existence.

The next step will be to litigate the extent of this privilege and I doubt that Septien and Kelly will win this issue

[Gothmog]

28. As predicted, the NJ committee is seeking to enforce subpoenas

The next step in the process is to seek to enforce the subpoenas on the grounds that the legal objections are not valid http://talkingpointsmemo.com/livewire/nj-bridge-committee-subpoena-objections-invalid

According to comments made by some of the members once they returned to open session, special counsel Reid Schar briefed the members on the constitutionality of Kelly and Stepien's objections during the closed session.

Once they returned to open session, the committee approved three motions related to Kelly's objection. The first declared the "books, papers, correspondence, and other documents and materials" requested from Kelly to be "necessary" to the investigation. The second motion deemed her objection "invalid. Finally, the third motion compelled the production of the materials requested from Kelly "on a day to be determined by special counsel." All three motions were approved, with the four Republicans on the committee abstaining and the eight Democrats voting yes.

After the motions on Kelly, the committee voted on identical motions concerning the subpoena sent to Stepien. Those three motions were also approved with the four committee Republican committee members abstaining.

For the reasons stated on this thread, I think that the Committee should win these motions and force production. The Act of Production and the Testimony by Production concepts do not apply when the government knows about the existence of the documents in question. In this case, we know that the witnesses used e-mails from private accounts and that these e-mails covered material relevant to the investigation. There will be a court fight but I think that Kelly and Septien will lose this fight.

[sendero]

30. It's worth it..

.. just to watch them "squirm". They are practically admitting guilt, of either themselves or higher ups, by trying to play hide-the-document, a game they are very unlikely to win.

[Gothmog]

32. Septien's lawyer wants to go to court to litigate these subpoenas

This is to be expected. Septien's attorney has rejected the attempt by the Legislative committee to gain compliance with the subpoenas and the next step is litigation. http://www.nj.com/politics/index.ssf/2014/02/attorney_for_bill_stepien_rejects_bridge_scandal_panel_request_for_documents_suggests_court.html

The attorney, Kevin Marino, reiterated in a letter dated today and sent to the attorney for the committee, Reid Schar, that Stepien would not turn over any documents subpoenaed last month or engage in any type of negotiation to reach such an end.

"I can think of no lawful way the committee can obtain documents responsive to its subpoena from Mr. Stepien," Marino wrote. "Stated simply, his principled objections to the subpoena raise significant legal issues that are no less valid because they here arise in the context of a politically-charged investigation."

He went on, "Hence, I respectfully suggest that if the committee persists in its refusal to withdraw the subpoena, we confer on an orderly process and schedule for seeking a judicial determination as to the validity of those objections."

I think that Septien is on weak legal grounds here and that he will lose before a judge and the next step would be an appeal. It will be interesting to see how the courts deal with these issues

[markpkessinger]

33. Thanks for the update and commentary! n/t

[Gothmog]

34. There will be a hearing on privilege issue

It will be interesting see how the judge rules. http://www.democraticunderground.com/?com=view_post&forum=1066&pid=426

[markpkessinger]

35. Thanks for the update! n/t

[Gothmog]

36. Does anyone have any links to the briefs filed for tomorrow's hearing?

I have been looking and have found several good articles on the arguments being made in these briefs but I have not found links to the actual briefs. I would love to read these briefs and see if they match up with my understanding of the case law in this area