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COVINGTON
The Honorable Richard Burr
The Honorable Mark R. Warner
May 22, 2017
Page 2

the witness.3 And, as courts have repeatedly held, the protection offered by the Fifth Amendment privilege extends to producing documents where the act of production itself is testimonial in nature.

The context in which the Committee has called for General Flynn’s testimonial production of documents makes clear that he has more than a reasonable apprehension that any testimony he provides could be used against him. Multiple Members of Congress have demanded that he be investigated and even prosecuted. He is the target on nearly a daily basis of outrageous allegations, often attributed to anonymous sources in Congress or elsewhere in the United States Government, which, however fanciful on their face and unsubstantiated by evidence, feed the escalating public frenzy against him.4 Additionally, in the intervening time since the Committee issued its subpoena, the Department of Justice has appointed a special counsel to investigate these and related matters. This environment creates a “reasonable cause to apprehend danger,” giving rise to a constitutional right not to testify. A detailed explanation of the legal basis for respectfully declining to comply with the Committee’s requests follows below.5

The Fifth Amendment Privilege Bars Congress From Compelling A Witness to Provide Testimony Through The Act of Producing Documents

The Fifth Amendment protects an individual from being “compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. This privilege applies in congressional investigations. In Watkins v. United States, Chief Justice Warren stressed that “the constitutional rights of witnesses will be respected by the Congress as they are in a court of justice. . . . Witnesses cannot be compelled to give evidence against themselves.” 354 U.S. 178, 187-88 (1957). The Supreme Court later held in United States v. Hubbell, 530 U.S. 27, 34 (2000), that the right not to be compelled to give testimony against oneself applies as well to the compelled production of documents that would be “testimonial” in nature. Specifically, the act of producing documents in response to a subpoena may have a “compelled testimonial aspect” when “the act of production itself may implicitly communicate statements of fact” that the documents “existed, were in his possession or control, and were authentic.” Id. at 36 (internal quotation marks omitted) (quoting United States v. Doe, 465 U.S. 605, 613 & n.11 (1984)).

3 Id.
4 These include leaks that purport to describe classified briefings, documents, and intelligence collection. Any actual leaks of classified information -- including reported leaks of signals intelligence -- constitute criminal offenses by government officials violating their duty to protect classified information.
5 General Flynn reserves the right to assert, in connection with the subpoena, any other privilege or protection provided by the Constitution, statute, or common law.

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