Subpoenas And The Fifth Amendment: The Chris Christie “Bridge” Scandal, Ctd

The media is reporting that Bridget Kelly, former aide to New Jersey governor Chris Christie, is “taking the Fifth” in response to subpoenas issued by a New Jersey state legislative committee investigating the George Washington Bridge closure scandal.  According to the New Jersey Star-Ledger, Kelly’s lawyer, Michael Critchley, wrote in a letter in response to the subpoenas:

Here, the information demanded from Ms. Kelly … directly overlaps with a parallel federal grand jury investigation being conducted by the United States Attorney’s Office for the District of New Jersey.  . . .  As such … Ms. Kelly asserts her rights under the Fifth Amendment of the United States Constitution and New Jersey law and will not produce the information demanded by the Committee.

Is Ms. Kelly’s invocation of her Fifth Amendment right not to incriminate herself proper in response to a subpoena?  Possibly, but probably not.  Here’s why.

Although the language of the Fifth Amendment–“No person … shall be compelled in any criminal case to be a witness against himself …”–could be read to bar the government from forcing a person to produce documents that might tend to incriminate him or her, and although the Supreme Court endorsed that interpretation for many years, since 1976 the Court has held that the Fifth Amendment protects a person only from being incriminated by his own “compelled testimonial communications.” Fisher v. United States, 425 U.S. 391, 409 (1976) (emphasis supplied).  A person cannot be compelled to testify (verbally) against himself, but he has no Fifth Amendment privilege to refuse to produce subpoenaed documents in his possession on the ground their contents are self-incriminating because producing documents is not “compelled testimony.”

Like every legal rule, this one has exceptions. One of them is known as the “act of production” rule. The Supreme Court recognized in the Fisher case that “[t]he act of producing evidence in response to a subpoena . . . has communicative aspects of its own, wholly aside from the contents of the papers produced.”  For example, suppose a person is suspected of having stolen documents containing a company’s trade secrets (like the formula for Coca-Cola).  The very act of producing the documents in response to a subpoena would confirm that the person possess the stolen information, thereby tending to incriminate him as the thief.   (This does not mean the government could not use a search warrant to search his home or business for the stolen trade secrets, assuming the government has probable cause to obtain a warrant.  It just means that the government can’t force the person, through a subpoena, to turn the documents over himself.)

Does the “act of production” rule apply to the subpoenas served on Bridget Kelly?  Her lawyer appears to suggest in his letter that it does, noting that the “Fifth Amendment’s protections are not limited to verbal testimony.”  But is his analysis right?  A court will have to decide that question, but I am skeptical, at least based on the information available at this time.