Roger Stone won't comply with subpoena from Senate Intel Committee

Sounds like Stone is essentially admitting guilt in regards to some aspect of the Committee's investigation and claiming the right to not give testimony against himself, while claiming innocence.

Attorney Ken White explains the legal basis for Stone's refusal to produce the documents:

The Fifth Amendment says you can't be "compelled in any criminal case to be a witness" against yourself. The government can't compel testimony from you if it might incriminate you -- at least not without a grant of immunity.

The Fifth Amendment says you can't be "compelled in any criminal case to be a witness" against yourself. The government can't compel testimony from you if it might incriminate you -- at least not without a grant of immunity.

Now, pre-existing items and documents are not testimony. It's not testimonial if you're forced to turn them over -- in the abstract. But there's a nuanced, complicated exception. Sometimes the "act of production" can be testimonial.

The idea is that if the government subpoenas you for documents, and you turn them over, you are admitting the existence, authenticity, and your possession of the documents -- and those may be incriminating. So even if the documents aren't testimony, producing them might be.

So years ago, the Supreme Court decided that sometimes, if it wants to compel production of documents, the government will have to offer what's called "act of production immunity" -- they can't use your production of the documents against you. (You can only demand such immunity when the act of production incriminates you -- in the classic example, as the sole proprietor of a business, because you must have prepared them yourself and must have known of their existence.)

Then, in 2000, the Supreme Court expanded the doctrine in the case of Clinton associate Webster Hubbell. The case involved very broad fishing-expedition style subpoenas from Independent Counsel Ken Starr. The subpoenas were very broad -- they asked for things like “any and all documents reflecting, referring, or relating to any direct or indirect sources of money or other things of value received by or provided to” Hubbell.

The Court found that because of how the questions were framed, identifying documents in response to them was "the functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition. " The key was that the government couldn't show that it already knew of the existence of the documents, as if they asked for all tax returns from a particular year. They were fishing for whether broad categories of documents existed, and the response to that is testimonial.

Put another way, rather than simply physically turning over documents, Hubbell had to use "the contents of his own mind" to select documents responsive to the government's broad fishing questions. That made his response testimonial, and thus protected by the Fifth Amendment. Because Hubbell's production of documents was compelled, the government would have to prove that all of its evidence was derived completely independently of that production, not tainted by it. It could not do so.

Stone's attorney's letter cites Hubbell and argues, in part, that the subpoena is too broad and asks for "documents concerning" topics, which could fall under Hubbell. I would need to see the subpoena to evaluate that argument.

In short, though you can [be] compelled to turn over documents already known to exist (though you may get act-of-production-immunity), you can't be compelled to help the government with its case by choosing which documents satisfy broad and vague categories they ask for.