When former President Donald Trump was presented with a subpoena last year requiring him to turn over various documents, federal prosecutors claimed he failed to properly respond.

He was eventually indicted in the U.S. District Court for the Southern District of Florida, and, in late July, a superseding indictment was filed against him on several charges, including obstruction.

But what exactly should a person or company do if they get a subpoena and the documents being demanded could be incriminating? What if the mere possession of the subpoenaed documents could make the person criminally liable?

If producing documents in response to a subpoena could potentially cause criminal exposure, there are constitutional protections in place that can help people and companies avoid an obstruction charge and still let them refrain from producing documents.

Here are some key pointers.

Obstruction

Title 18 of the U.S. Code, Section 1519, makes it a crime to knowingly alter, destroy, mutilate, conceal, cover up, falsify, or make a "false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter."

In U.S. v. Trump, the government alleged that the former president violated Section 1519 because he allegedly "hid, concealed, and covered up from the FBI [his] continued possession of documents with classification markings at The Mar-a-Lago Club."[1]

This statute was enacted in response to Enron Corp.'s collapse.[2] Its purpose, according to a 2002 U.S. Senate report, was "to provide for criminal prosecution of persons who alter or destroy evidence in certain Federal investigations or defraud investors of publicly traded securities, to disallow debts incurred in violation of securities fraud laws from being discharged in bankruptcy, [and] to protect whistleblowers against retaliation by their employers."[3]

The report notes that after Enron's collapse, "investors and regulators attempted to ascertain both the extent and cause of their losses." However, "employees ... were allegedly shredding 'tons' of documents."[4]

Moreover, "[t]he systematic destruction of records apparently extended beyond paper records and included efforts to 'purge the computer hard drives and e-mail system of Enron related files.'"[5]

At the time when the legislation was passed, then-U.S. Attorney General John Ashcroft stated that the statute imposed "new criminal penalties for securities fraud, attempts or conspiracies to commit fraud, certifying false financial statements, document destruction or tampering, and retaliating against corporate whistleblowers."[6]

The statute's purpose was to combat institutional financial fraud and protect investors. Congress did not contemplate applying Section 1519 to inaction, or the failure to produce allegedly incriminating documents, thereby running afoul of the Fifth Amendment.

The Fifth Amendment and Act of Production Doctrine

It is well settled that a person may assert their Fifth Amendment privilege against self-incrimination when responding to a subpoena.

The U.S. Supreme Court has explained that the act of producing subpoenaed documents itself possesses Fifth Amendment protection, in that the act of production may convey information about the existence, authenticity or possession of evidence, as well as the belief that any evidence actually produced matches a subpoena's terms.[7]

As the U.S. Court of Appeals for the Second Circuit wrote in 2010, "Because the act of producing documents can be both incriminating and testimonial ... a subpoenaed party may be able to resist production on Fifth Amendment grounds."[8]

When a Client Fails to Respond or Makes a Partial Production

At the earliest possible opportunity, counsel should invoke the client's Fifth Amendment privilege in writing to the government and confirm that pursuant to that right, the client will not be producing documents. However, counsel may face complications if clients first tried to resolve the matter on their own.

If a client has already waited an extended period of time to respond to the subpoena, or if a client has already partially responded to a subpoena prior to involving counsel by only producing nonincriminating documents and withholding any potentially incriminating documents, an attorney should still consider formally advising the government in writing that the client is invoking his Fifth Amendment right.

A delayed invocation of the Fifth Amendment does not necessarily waive it: While a person must affirmatively assert their Fifth Amendment rights in withholding documents, waiting an extended period of time before asserting the privilege still may not be considered a waiver.[9]

As the Second Circuit held in its 1998 In re: DG Acquisition Corp. ruling, "Some courts suggest that untimeliness, without more, can never justify a finding of waiver of the Fifth Amendment privilege."[10]

Thus, attorneys should notify the government that their clients are asserting the Fifth Amendment even if the attorney is hired months after the client received the subpoena.

If the Fifth Amendment is never asserted, the client runs the risk of being charged with obstruction because the government will assert that the client knowingly concealed documents with the intent to impede an investigation, which is what the government alleges Trump did in its superseding indictment.

The superseding indictment alleges that "in response to a grand jury subpoena demanding the production of all documents," Trump only produced some of the boxes of documents that he allegedly had in his office and a storage room at The Mar-a-Lago Club. Trump allegedly lied about not having additional documents, instead of asserting his Fifth Amendment privilege.

In addition, if a client failed to respond entirely, or only produced nonincriminating documents in response to a subpoena, and the government is threatening to file an obstruction charge, counsel can also assert that such a charge in these circumstances runs contrary to the statute's purpose.

The purpose of the statute was not to criminalize inaction that is consistent with one's Fifth Amendment privilege — the purpose was to combat people taking affirmative actions, like altering or destroying evidence.

The statute cannot criminalize an act that is constitutionally protected. Thus, to use the statute to criminalize the act of withholding potentially incriminating documents would violate the client's Fifth Amendment privilege against self-incrimination and would be a misinterpretation of the statute's provisions.[11]

Conclusion

As demonstrated by the charges levied against Trump, subpoenas for potentially incriminating documents can be fraught with potential landmines. But by responding early and relying on constitutional protections, counsel can help to protect clients from obstruction charges and simultaneously prevent documents from being disclosed to the government.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Superseding Indictment in United States of America v. Donald Trump, July 27, 2023, available at: https://www.justice.gov/storage/US-v-Trump-Nauta-De-Oliveira-23-80101.pdf

[2] S. Rep. No. 107-146, at 3-4 (2002). ("According to a federal indictment, on October 16, 2001, Enron announced a $618 million net loss for the third quarter of 2001 and that it would reduce shareholder equity by $1.2 billion. Six days later, the Securities and Exchange Commission ("SEC") began investigating the financial practices of Enron…" thereafter, employees began destroying "tons" of documents).

[3] S. Rep. No. 107-146, at 1 (2002).

[4] S. Rep. No. 107-146, at 4 (2002).

[5] S. Rep. No. 107-146, at 4 (2002).

[6] Attorney General August 1, 2002 Memorandum on The Sarbanes-Oxley Act of 2002.

[7] United States v. Hubbell , 530 U.S. 27, 36 (2000); see also Fisher v. United States , 425 U.S. 391, 410 (1976).

[8] Oberlander v. United States, In re Grand Jury Subpoena Issued June 18, 2009 ("ASC") , 593 F.3d 155, 157 (2d Cir. 2010).

[9] Salinas v. Texas , 570 U.S. 178, 178 (2013) ("a witness who desires the protection of the privilege ... must claim it at the time he relies on it.").

[10] In re DG Acquisition Corp. , 151 F.3d 75, 81 (2d Cir. 1998). See also Emspak v. United States , 349 U.S. 190, 196 (1955) ("although the privilege against self-incrimination must be claimed, when claimed it is guaranteed by the Constitution. Waiver of constitutional rights is not lightly to be inferred. A witness cannot properly be held after claim to have waived his privilege upon vague and uncertain evidence."); Mueller v. Dist. Ct. In & For City & Cnty. of Denver , 199 Colo. 430, 610 P.2d 104 (1980) ("failure to make timely objection to interrogatories or requests to produce documents did not constitute waiver of the constitutional privilege against self-incrimination"); United States v. A & P Arora Ltd. , 46 F.3d 1152 (10th Cir. 1995) (courts are reluctant to equate non-assertion and waiver because "the privilege has a unique, constitutional grounding which counsels caution in the application of technical waiver principles"); United States v. Hung Thien Ly , 646 F.3d 1307, 1316 (11th Cir. 2011) (The Supreme Court instructs courts to "indulge every reasonable presumption against waiver of fundamental constitutional rights."); Hernandez v. Hankook Tire Am. Corp. , No. 2:12-CV-03618-WMA, 2014 WL 3052545, at *4 (N.D. Ala. July 3, 2014) ("courts are reluctant to find that claims of privilege have been waived solely because they have been untimely asserted"); SPV-LS, LLS v. Herbst , No. 16-MC-197, 2016 WL 8711738, at *2 (S.D.N.Y. June 3, 2016) ("the Fifth Amendment privilege is not necessarily waived by failure to object to a subpoena in a timely fashion. … This is particularly the case when the waiver would come from inaction, not action.").

[11] See United States v. Nestor , No. 3:09-CR-00397, 2010 WL 2696776, at *6 (M.D. Pa. July 6, 2010) ("in Arthur Anderson, the statute at issue, § 1512(b)(2), prohibited someone from persuading a person with intent to cause that person to withhold documents from the government. Id. at 704. Restraint was appropriate because this law could apply to a family member advising a loved one to invoke their Fifth Amendment rights or to a lawyer counseling a client to withhold documents covered by attorney client privilege. Id. Similarly, restraint is appropriate when interpreting § 1519. § 1519 forbids someone to "knowingly ... conceal ... any record ... with intent to ... obstruct ... the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States." 18 U.S.C. § 1519. This provision, like that at issue in Arthur Anderson, would seemingly apply to a lawyer advising a client to withhold privileged documents, a perfectly innocent activity. It would also apply to the family member advising a loved one to invoke their Fifth Amendment right from self incrimination. Because these legitimate actions could be within the reach of § 1519, restraint is required in interpreting this provision.").

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