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COVINGTON
BEIJING BRUSSELS LONDON LOS ANGELES
NEW YORK SAN FRANCISCO SEOUL
SHANGHAI SILICON VALLEY WASHINGTON
By E-Mail and First Class Mail
The Honorable Richard Burr
The Honorable Mark R. Warner
Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
Robert K. Kelner
Covington & Burling LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
May 22, 2017
Re: Subpoena to Lieutenant General Michael T. Flynn (Ret.)
Dear Chairman Burr and Vice Chairman Warner:
We write in response to the Senate Select Committee on Intelligence's subpoena dated
May 10, 2017, requesting that our client, Lieutenant General Michael T. Flynn (Ret.), produce
any documents he may have that are responsive to a broad range of requests covering an 18-
month period of time. Specifically, the subpoena requests that he create a list of all meetings and
all communications between himself and Russian officials, and that he produce records of all
communications between himself and President Trump's campaign that were in any way related
to Russia, for the period from June 16, 2015, to January 20, 2017.
In our May 8, 2017, letter to the Committee, we reiterated General Flynn's eagerness to
give a full account of the facts and to answer the Committee's questions, should the
circumstances permit, including assurances against unfair prosecution. We stated that, absent
such assurances, General Flynn would respectfully decline your request for an interview and for
the production of documents.
Our client's position remains unchanged. Producing documents that fall within the
subpoena's broad scope would be a testimonial act, insofar as it would confirm or deny the
existence of such documents. Under the Fifth Amendment to the United States Constitution and
applicable court precedents, no person is required to offer testimony when he has "reasonable
cause to apprehend danger from a direct answer," even when that person is entirely innocent
and has committed no crime.1 Indeed, the United States Supreme Court has "emphasized that
one of the Fifth Amendment's basic functions... is to protect innocent men . . . who otherwise
might be ensnared by ambiguous circumstances."2 The Court held that even "truthful responses
of an innocent witness" may provide the Government with evidence that could be used against
I See Ohio v. Reiner, 532 U.S. 17, 21 (2001) (internal quotation marks omitted).
2 Id. (emphasis in original) (internal quotation marks omitted).
DC: 6427118-1
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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
(200o), 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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A. If the government fails to demonstrate prior knowledge of requested
subpoenaed documents, the act of producing those documents is testimonial.
Two Supreme Court precedents, Fisher v. United States, 425 U.S. 391 (1976) and United
States v. Hubbell, as well as Hubbell's progeny, United States v. Ponds, 454 F.3d 313 (D.C. Cir.
2oo6), inform the determination of whether a production of documents in response to a
subpoena has a testimonial character. Fisher involved IRS investigations in which the
government learned that the investigated taxpayers had given their attorneys tax returns
prepared by their accountants in the years in question. The Court highlighted that the
subpoenaed documents belonged to the accountant and not the target of the investigation, were
prepared by the accountant, and are "the kind usually prepared by an accountant working on the
tax returns of his client." Fisher, 425 U.S. at 411. The Court concluded that insofar as the
government was not relying on the taxpayer to prove the existence of the documents, production
of the documents was not "testimonial" because "the existence and location of the papers are a
foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government's
information by conceding that he in fact has the papers." Id.
In contrast to Fisher, a case in which investigators already knew that documents existed
and exactly where they were located, the investigators in Hubbell lacked "any prior knowledge of
either the existence or the whereabouts" of the subpoenaed materials. Hubbell, 530 U.S. 27, 44-
45. Hubbell arose out of the Whitewater investigation, in which Independent Counsel Kenneth
Starr sought broad categories of information from Webster Hubbell, a target of the
investigation. The subpoena included such requests as "any and all documents reflecting,
referring, or relating to" the broad contours of the investigation, as well as "Hubbell's schedule
of activities." Id. at 41, 47. In examining the broad requests in the subpoena, the Court
emphasized that "it [was] apparent from the text of the subpoena itself that the prosecutor
needed respondent's assistance both to identify potential sources of information and to produce
those sources." Id. at 41. The Court ruled that the acts required to respond to such a broad
subpoena were testimonial in nature, comparing them to "answering a series of interrogatories
asking a witness to disclose the existence and location of particular documents fitting certain
broad descriptions." Id. at 41, 43.
The U.S. Court of Appeals for the District of Columbia Circuit applied Hubbell and
Fisher in United States v. Ponds, framing the inquiry as concerning "an act of production that,
in its testimonial character, falls somewhere between the response to a fishing expedition
addressed in United States v. Hubbell, and the production of documents whose existence was a
'foregone conclusion' in Fisher v. United States." United States v. Ponds, 454 F.3d 313, 316
(D.C. Cir. 2oo6). The court emphasized that "[w]hether an act of production is sufficiently
testimonial to implicate the Fifth Amendment ... depends on the government's knowledge
regarding the documents before they are produced." Id. at 320. Significantly, the Ponds court
put the burden on the government to show that the act of production would not be testimonial,
requiring the government to show its pre-subpoena knowledge of the "existence, possession, and
authenticity of the subpoenaed documents with reasonable particularity such that the
communication inherent in the act of production can be considered a foregone conclusion." Id.
at 324 (internal citations omitted).
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The court contrasted the concept of "reasonable particularity" with mere general
knowledge of an event or topic, finding that mere "prior knowledge [of a topic] ... cannot suffice
to establish [the government's] prior knowledge of the existence and location of the documents
relating or referring to those topics." Id. at 326. Ultimately, the court held that "[b]ecause the
government has failed to show with reasonable particularity that it knew of the existence and
location of most of the subpoenaed documents... Ponds' act of production was sufficiently
testimonial to implicate his right against self-incrimination under the Fifth Amendment to the
Constitution." Id. at 316.
B. Because the Committee's subpoena fails to demonstrate with reasonable
particularity prior knowledge of the requested documents, General Flynn's act
of production would be testimonial in nature.
The great breadth of the Committee's subpoena to General Flynn suggests that his act of
producing the requested documents, if they even exist, would be testimonial in nature, given
that the Committee has not demonstrated knowledge of the "existence, possession, and
authenticity of the subpoenaed documents with reasonable particularity such that the
communication inherent in the act of production can be considered a foregone conclusion." Id.
at 324. Schedule A of the subpoena requests production of:
1. A list of all meetings between you and any Russian official or
representative of Russian business interests which took place
between June 16, 2015, and 12pm on January 20, 2017. For each
meeting listed, please include the date, location, all individuals
present, and complete copies of any notes taken by you or on your
behalf.
2. All communications records, including electronic
communications records such as e-mail or text messages, written
correspondence, and phone records, of communications that took
place between June 16, 2015, and 12pm on January zo 2017, to
which you and any Russian official or representative of Russian
business interests was a party.
3. All communications records, including electronic
communications records such as e-mail or text message, written
correspondence, and phone records, of communications related in
any way to Russia, conducted between you and members and
advisors of the Trump campaign prior to izpm on January 20,
2017.
In sum, the subpoena demands a list of "all meetings" with "any Russian official," "all
communication records" with "any Russian official," and "all communication records ... related
in any way to Russia" conducted with unnamed "members and advisors of the Trump
campaign," that occurred over an 18-month period. The broad sweep and lack of specificity of
these demands clearly reflect that the Committee does not have specific knowledge regarding
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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, 200,3,383 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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Instead, as in Hubbell, the Committee's broad demands makes it "apparent from the text
of the subpoena itself' that the Committee needs General Flynn's "assistance both to identify
potential sources of information and to produce those sources." Hubbell, 530 U.S. at 41. As a
consequence, the subpoena seeks to compel General Flynn to offer testimony through the act of
producing documents that may or may not exist. In these circumstances, General Flynn is
entitled to, and does, invoke his Fifth Amendment privilege against production of documents.
Respectfully submitted,
Robert K. Kelner
Stephen P. Anthony
Brian D. Smith
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