On Monday, lawyers for former Trump administration national security adviser Michael Flynn informed the Senate Intelligence Committee that Flynn does not intend to produce documents subpoenaed by the committee. In a six-page letter explaining why, Flynn’s counsel from Covington & Burling cited (among other cases) the U.S. Supreme Court’s 2000 decision in U.S. v. Hubbell, which held that a witness can’t be compelled to respond to a subpoena so broad that it amounts to a prosecutorial fishing expedition.
The Hubbell precedent, as you’ve probably guessed, involved onetime Clinton Associate Attorney General Webb Hubbell, who was implicated in the Whitewater investigation and ended up pleading guilty to two felonies. The case is one of at least three Supreme Court decisions in previous presidential investigations that’s likely to get a vigorous re-airing as Congress and special counsel Robert Mueller delve into possible ties between the Trump campaign and Russian officials.
The most famous of the old Supreme Court cases is, of course, U.S. v. Nixon, the 1974 ruling in which the justices ordered President Nixon to turn over documents and audiotapes to Watergate special prosecutor Leon Jaworski. The Nixon decision restricted the president’s right to claim executive privilege to shield his communications with close aides.
Generally, those communications are presumed to be cloaked under confidentiality, but the Supreme Court said executive privilege is qualified, not absolute, and can be overcome in a criminal investigation. As I wrote earlier this month, the Trump administration made noises about asserting executive privilege to block testimony by fired Acting Attorney General Sally Yates, although it ended up backing down.
There’s been conjecture that the White House might assert privilege to shield the president’s conversations with fired FBI director James Comey. If it does, legal scholars told me, the Trump administration is likely to lose under the Nixon precedent.
The president’s communications with White House lawyers may also be exposed, thanks to the Supreme Court’s 1998 decision in In re Lindsey. The Lindsey case, like the Hubbell precedent, stems from independent counsel Ken Starr’s long-running Whitewater investigation. The grand jury looking into President Clinton’s affair with Monica Lewinsky subpoenaed Deputy White House counsel Bruce Lindsey to testify. Lindsey refused to answer some questions, citing the president’s attorney-client privilege.
The Supreme Court concluded, however, that government lawyers “stand in a far different position from members of the private bar,” the justices said. “When an executive branch attorney is called before a federal grand jury to give evidence about alleged crimes within the executive branch, reason and experience, duty and tradition dictate that the attorney shall provide that evidence.”
In contrast to the Nixon and Lindsey decisions, the Hubbell opinion that Flynn’s lawyers cited Monday curbed a presidential inquisition rather than the president’s power to resist a special investigation. In that case, independent counsel Starr issued a sweeping subpoena for documents from Hubbell, who had already pled guilty to overbilling clients of the Rose Law Firm before he joined the Clinton administration. Hubbell’s plea agreement required him to cooperate in the Clinton investigation, but Starr’s team suspected he hadn’t turned over everything he had.
When Hubbell cited his Fifth Amendment right and balked at complying with the subpoena, the independent investigator granted him immunity and obtained a court order directing him to produce the demanded documents. Hubbell turned over more than 13,000 pages – and ended up facing a new indictment for tax and fraud charges.
The Supreme Court agreed with Starr that witnesses can be compelled, despite the Fifth Amendment, to turn over subpoenaed documents that may contain incriminating evidence. But the justices also said that the act of producing documents may be akin to testifying, when the production confirms the existence and authenticity of otherwise unknown documents sought in a broad subpoena. In those circumstances, the court ruled, witnesses have a Fifth Amendment right not to testify against themselves.
“The constitutional privilege against self-incrimination protects the target of a grand jury investigation from being compelled to answer questions designed to elicit information about the existence of sources of potentially incriminating evidence,” the Supreme Court said in dismissing the new Hubbell indictment. “That constitutional privilege has the same application to the testimonial aspect of a response to a subpoena seeking discovery of those sources.”
According to Flynn’s lawyers, the Senate Intelligence Committee’s subpoena to their client is as overly broad as Starr’s to Hubbell. “The committee does not know whether responsive documents exist, who may possess them, or where they are located,” the letter said. “This is precisely the sort of testimonial information that the Fifth Amendment privilege is designed to protect from compelled disclosure.”
The Senate Committee is reportedly weighing its response to the Flynn letter. (No response had been announced by mid-afternoon on Tuesday.) Options include civil or criminal contempt proceedings. Flynn counsel Robert Kelner of Covington declined to comment.
As test cases on presidential power to limit the damage from special investigations, Nixon, Lindsey and Hubbell are in a club no one wants to join. But I suspect we are going to hear a lot about them as the Russia investigations move along.