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COVINGTON

The Honorable Richard Burr
The Honorable Mark R. Warner
May 22, 2017
Page 5

the existence of any particular responsive documents. See United States v. Doe, 465 U.S. 605,
613 n.12 (1984) (“The most plausible inference to be drawn from the broad-sweeping subpoenas
is that the Government [is] unable to prove that the subpoenaed documents exist . . . .”).

The first demand for a list of all meetings with any Russian official (or “representative of
Russian business interests”) over 18 months fails for want of specifying particular individuals,
locations, or dates. Moreover, this is not merely a demand to produce existing documents. It is
actually an interrogatory demanding that General Flynn create a new document containing
information that the Committee seeks to discover. This is a demand for direct testimony, not
merely a testimonial act of production. As in Hubbell, General Flynn’s compilation of such a list
would be akin to him “answering a series of interrogatories asking [him] to disclose the
existence and location of [meetings] fitting certain broad descriptions.” Hubbell, 530 U.S. at 41.
The Court in Hubbell held that the witness could not be compelled to prepare such a list without
violating his Fifth Amendment privilege. Finally, the nebulous term “representative of Russian
business interests” necessarily would require General Flynn, in responding to the request, to
testify as to who is or is not a “representative of Russian business interests.” This too constitutes
direct testimony that is clearly covered by the Fifth Amendment privilege.

The subpoena’s second and third demands are even broader in scope than the first, given
their request for all communication records with any Russian official. The complete lack of
specificity in the request makes clear that, unlike in Fisher, the existence of any document
responsive to the Committee’s request is far from a “foregone conclusion.” Fisher, 425 U.S. at
411. The fact that the subpoena also demands all documents in the custody, control or
possession of General Flynn’s “agents, employees, or representatives” underscores that the
Committee does not know whether responsive documents exist, who may possess them, or
where they are located. Were General Flynn to provide responsive documents, he would be
providing compelled testimony about “the documents’ existence, custody, and authenticity.”
Hubbell, 530 U.S. at 28. This is precisely the sort of testimonial information that the Fifth
Amendment privilege is designed to protect from compelled disclosure. See In re Grand Jury
Subpoena, Dated Apr. 18, 2003, 383 F.3d 905, 911 (9th Cir. 2004) (finding an act of production
to be testimonial in nature where a “subpoena seeks all documents within a category but fails to
describe those documents with any specificity . . . .”).

The Committee must demonstrate more than general knowledge that a meeting may
have occurred; the Committee must demonstrate “knowledge of the existence and possession of
the actual documents” in order to prove that the existence and location of the documents is a
“foregone conclusion.” Id. at 910 (emphasis added). The Committee simply has not met its
burden of showing its “pre-subpoena knowledge of the existence, possession, and authenticity of
the subpoenaed documents with reasonable particularity.” Ponds, 454 F.3d at 324.

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