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ExtremelyCalmHat
Roger Stone is taking the Fifth in response to a Congressional subpoena, let's do a 'splainer about how the Fifth applies to production of documents, since some of you want to know and because this is the life I've chosen. /1
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ExtremelyCalmHat Dec 4
Replying to @Popehat
/2 The Fifth Amendment says you can't be "compelled in any criminal case to be a witness" against yourself. The government can't compel testimony from you if it might incriminate you -- at least not without a grant of immunity.
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ExtremelyCalmHat Dec 4
Replying to @Popehat
/3 One of the issues the courts have had to confront is this question: what is testimony? Is a sobriety test testimonial, especially if you have to talk? A blood test? Mandatory filing of tax returns? A handwriting sample? And so forth.
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ExtremelyCalmHat Dec 4
Replying to @Popehat
/4 Now, pre-existing items and documents are not testimony. It's not testimonial if you're forced to turn them over -- in the abstract. But there's a nuanced, complicated exception. Sometimes the "act of production" can be testimonial.
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ExtremelyCalmHat Dec 4
Replying to @Popehat
/5 The idea is that if the government subpoenas you for documents, and you turn them over, you are admitting the existence, authenticity, and your possession of the documents -- and those may be incriminating. So even if the documents aren't testimony, producing them might be.
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ExtremelyCalmHat Dec 4
Replying to @Popehat
/6 So years ago, the Supreme Court decided that sometimes, if it wants to compel production of documents, the government will have to offer what's called "act of production immunity" -- they can't use your production of the documents against you.
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ExtremelyCalmHat Dec 4
Replying to @Popehat
/7 (You can only demand such immunity when the act of production incriminates you -- in the classic example, as the sole proprietor of a business, because you must have prepared them yourself and must have known of their existence.)
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ExtremelyCalmHat Dec 4
Replying to @Popehat
/8 Then, in 2000, the Supreme Court expanded the doctrine in the case of Clinton associate Webster Hubbell. The case involved very broad fishing-expedition style subpoenas from Independent Counsel Ken Starr.
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ExtremelyCalmHat Dec 4
Replying to @Popehat
/9 The subpoenas were very broad -- they asked for things like “any and all documents reflecting, referring, or relating to any direct or indirect sources of money or other things of value received by or provided to” Hubbell.
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ExtremelyCalmHat Dec 4
Replying to @Popehat
/10 The Court found that because of how the questions were framed, identifying documents in response to them was "the functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition. "
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ExtremelyCalmHat Dec 4
Replying to @Popehat
/11 The key was that the government couldn't show that it already knew of the existence of the documents, as if they asked for all tax returns from a particular year. They were fishing for whether broad categories of documents existed, and the response to that is testimonial.
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ExtremelyCalmHat Dec 4
Replying to @Popehat
/12 Put another way, rather than simply physically turning over documents, Hubbell had to use "the contents of his own mind" to select documents responsive to the government's broad fishing questions. That made his response testimonial, and thus protected by the Fifth Amendment.
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ExtremelyCalmHat Dec 4
Replying to @Popehat
/13 Because Hubbell's production of documents was compelled, the government would have to prove that all of its evidence was derived completely independently of that production, not tainted by it. It could not do so.
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ExtremelyCalmHat Dec 4
Replying to @Popehat
/14 Stone's attorney's letter cites Hubbell and argues, in part, that the subpoena is too broad and asks for "documents concerning" topics, which could fall under Hubbell. I would need to see the subpoena to evaluate that argument.
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ExtremelyCalmHat Dec 4
Replying to @Popehat
/15 In short, though you can compelled to turn over documents already known to exist (though you may get act-of-production-immunity), you can't be compelled to help the government with its case by choosing which documents satisfy broad and vague categories they ask for. /end
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t4nky Dec 4
Replying to @Popehat
Would a single tweet version be “being forced to produce something is incriminating, especially if that something is irrelevant?”
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ExtremelyCalmHat Dec 4
Replying to @NowhereIslandU
No.
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t4nky Dec 4
Replying to @Popehat
Ok. Is it possible to sum what you’re talking about up in one tweet? Because if I can do that, then I’ve learned something. If I just parrot back to you what you said, then I’ve learned nothing.
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ExtremelyCalmHat Dec 4
Replying to @NowhereIslandU
I can say "give me all your tax returns" even if they show fraud. But if someone stole the Hope Diamond, I can't say "give me the Hope Diamond if you have it," or "give me all documents showing schemes to steal the Hope Diamond.
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ClusterFluff Dec 5
Replying to @Popehat
Question that will probably not be answered because it's 15 hours after the thread: How does a 5th Amendment claim square with the stated justification that the request was too broad? Aren't those fundamentally different justifications?
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