Is It Time to Revisit the Corporate Privilege Against Compelled Self

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2005, criminal defense lawyers accepted the federal sen- Is It Time to Revisit the tencing guidelines as mandatory until enterprising defense counsel challenged their constitutionality.5 It is Corporate Privilege the obligation of sophisticated defense attorneys not to simply know what the law is, but to consider where the Against Compelled law is heading and even where it should be heading. Failure to anticipate these legal developments and raise appropriate challenges may mean missing an opportuni- Self-Incrimination? ty to protect a client’s rights. With these obligations in mind, it is time to revisit the issue of a corporation’s right against compelled self- or well over a century, the law in the United States incrimination, and upon such review, it is clear that the has been settled that corporations do not benefit basis for Hale and its progeny is no longer consistent with Ffrom the Fifth Amendment’s privilege against com- how society or the Supreme Court views corporations or pelled self-incrimination. In 1906, in Hale v. Henkel, the with the principles underlying the right against self- Supreme Court held that an individual officer of a cor- incrimination.6 Indeed, while the Supreme Court has not poration could not assert the Fifth Amendment privilege looked at the issue of corporate assertion of the right on behalf of the corporation, stating that “[t]he amend- against self-incrimination in decades, the Court has been ment is limited to a person who shall be compelled in otherwise busy redrawing the landscape for other any criminal case to be a witness against himself; and if corporate constitutional rights, including in high-profile he cannot set up the privilege of a third person, he cer- cases such as Citizens United v. FEC7 and Burwell v. Hobby tainly cannot set up the privilege of a corporation.”1 Lobby Stores, Inc.8 Significantly, with the exception of the Following Hale, the Supreme Court has repeatedly reit- protection against self-incrimination, the courts have erated that corporations do not receive the benefit of the now held, through various cases, that each of the Fifth Amendment’s protection against self-incrimina- protections of the Fifth Amendment, as well as the tion.2 But long-settled is not necessarily forever-settled. Fourteenth Amendment’s due process and equal The law evolves in response to societal developments and protection provisions, extends to corporations.9 With legal challenges. For example, until 1986, it was settled these decisions, the Supreme Court has eroded — if not law that prosecutors could strike black jurors unless the directly contradicted — the basis upon which Hale was defendant could demonstrate a prima facie case of invid- decided. As a result, the reasonable practitioner ought to ious discrimination.3 Until 2004, testimonial hearsay wonder when, not whether, the Supreme Court will could be admitted as evidence if there were sufficient revisit Hale and its progeny and find that corporations indicia of reliability.4 Similarly, for many years before cannot be compelled to incriminate themselves.

BY MARK ROCHON, ADDY R. SCHMITT, AND IAN A. HERBERT

50 NACDL.ORG THE CHAMPION To be clear, there is room for a himself”10 — was described in ing any person to give an ex officio oath policy debate as to whether corpora- Miranda as “the essential mainstay of that would incriminate himself.19 This tions ought to benefit from the protec- our adversary system,”11 and in right against self-incrimination was tion against self-incrimination. Some Kastigar as “an important advance in quickly adopted by common law judges might argue that providing such pro- the development of our liberty.”12 and extended to all witnesses.20 tection would encourage corporate Indeed, the right is so fundamental While the Fifth Amendment may misconduct and make it harder to hold that, as to individuals, the Supreme be most closely tied to the develop- corporations accountable for criminal Court has held it essential to due ments arising out of the litigation by acts. However, this article is not process under the Fourteenth the courageous Mr. Lilburn, scholar- focused on policy arguments regard- Amendment and thus it is incorporat- ship has found invocation of the privi- ing how to best influence corporate ed into the protections individuals lege centuries earlier. The Latin maxim behavior or on the ease or difficulty in have in nonfederal prosecutions. Thus, “nemo tenetur prodere seipsum” — “no investigating and prosecuting corpora- the Supreme Court has instructed that one is bound to betray oneself” — tions. Instead, it is focused on where the privilege against compelled self- appears as early as 1234 in a medieval the law has been and where it might be incrimination should “be accorded guide to canon law.21 In the Miranda going on the question of whether a liberal construction in favor of the decision itself, the Supreme Court rec- corporation can assert a right against right it was intended to secure.”13 ognized that “[t]hirteenth century compulsory self-incrimination. It is Given the centrality of this principle to commentators found an analogue to worth noting that other robust crimi- the system of criminal justice, one the privilege grounded in the Bible. ‘To nal justice systems, including, for should question any constitutional sum up the matter, the principle that no example, the systems in some interpretation that purports to with- man is to be declared guilty on his own European countries, provide such pro- hold the right to an entity under gov- admission is a divine decree.’”22 tection for corporations. Moreover, ernment investigation or facing crimi- Regardless of its precise origins, though the individual right against nal prosecution. the privilege against self-incrimination compulsory self-incrimination — as In fact, the notion of protection had been adopted in America even well as other constitutional rights held against compelled self-incrimination prior to the drafting of the Bill of SELF-INCRIMINATION by individuals and corporations — preceded the Fifth Amendment by cen- Rights. At least six states had constitu- undoubtedly adds inconvenience and turies. The traditional view of the ori- tions that allowed for protections challenges in investigating and prose- gin of the privilege is that it was born against compelled self-incrimination. cuting criminal conduct, constitution- out of the ecclesiastical courts of the For example, Virginia’s Declaration of al protections are not designed to Star Chamber and High Commission, Rights stated: “in all capital or criminal make things easier for the government, which conducted their investigations prosecutions a man hath a right to but rather to preserve the integrity of through an “ex officio oath” procedure demand the cause and nature of his the criminal justice system and protect in which the defendant was forced to accusation …; nor can he be compelled against government overreach. swear an oath to answer questions put to give evidence against himself.”23 An This article discusses the relevant to him by the court.14 early draft of the federal Bill of Rights background on the origins of the priv- In particular, the Fifth Amendment applied the privilege to civil and crim- ilege against self-incrimination, its owes a lot to one John Lilburn, who in inal proceedings, but the version of the application (or not) to corporations, 1637 faced trial by the Council of the Bill of Rights that was ratified limited and the expansion of corporate consti- Star Chamber, and rather than proceed the privilege to criminal cases.24 By the tutional protections and the evolving under the traditional oath, told the end of the 19th century, it was settled rationale for those protections. Upon court, “I am not willing to answer you law that the privilege against self- review of this history and evolution, it to any more of these questions, because incrimination applied not only will be clear that it is anomalous and I see you go about by this examination to forced interrogation at criminal inconsistent that each of the due to ensnare me.”15 Lilburn reportedly trial, as was the case in the Star process and other protections of the argued: “Another fundamental right I Chamber, but also to station Fifth and Fourteenth Amendments has then contended for, was, that no man’s house interrogation.25 been extended to corporations except conscience ought to be racked by oaths But what is the purpose of the right the right against compelled self- imposed, to answer to questions con- against self-incrimination? Certainly, incrimination. Moreover, it will be cerning himself in matters criminal, or one prevailing concern is that in the clear that the legal landscape has shift- pretended to be so.”16 After being sen- adversarial system, it is the government’s ed, and that corporations ought to be tenced for his “boldness in refusing to burden to prove its case by its own evi- able to assert the full panoply of Fifth take a legal oath,” Lilburn petitioned dence, not the defendant’s burden to and Fourteenth Amendment protec- Parliament for reparation, and his defend his or her actions or to produce tions, including the protection against counsel argued that it was “contrary to any evidence. This concern is apparent self-incrimination. the laws of God, nature, and the king- in the Star Chamber cases, and it is what dom, for any man to be his own accus- the Supreme Court has referred to as a The Fifth Amendment’s protec- er.”17 The House of Lords agreed and “preference for an accusatorial rather tion against self-incrimination ordered the sentence vacated “as illegal, than an inquisitorial system of criminal is a broad right fundamental to and most unjust, against the liberty of justice.”26 A related consideration stems the system of criminal justice. the subject and law of the land and from concerns about the interplay The Fifth Amendment’s protec- Magna Charta.”18 Parliament later abol- between governmental intrusion and tion against self-incrimination — “No ished the Council of Star Chamber and liberty, privacy and dignity, which may person … shall be compelled in any the Court of High Commission for be why some of the early cases about the criminal case to be a witness against Ecclesiastical Causes, and forbid requir- right against self-incrimination blended

NACDL.ORG SEPTEMBER/OCTOBER 2019 51 the Fourth and Fifth Amendment analy- from the application of the Fourth The conception of the corporation ses. Lastly, the right is clearly animated Amendment’s protections against that underlies Hale is anachronistic. by a concern that compelled testimony unreasonable searches and seizures to Until the early 20th century, it was may be less reliable, with the Supreme corporate premises.29 believed that “a corporation cannot Court referring to compelled testimony Given the importance of the right commit treason, or felony, or other as the “cruel trilemma of self-accusation, against self-incrimination to the system crime, in its corporate capacity”; rather, perjury, or contempt.”27 In Miranda v. of criminal justice, there must be com- any criminal act by the company was Arizona, the Court captured the essence pelling rationales for any refusal to pro- attributed to its officers.35 Laws attribut- of the importance of the privilege: vide the protection to any target of a ing criminal liability to corporations government investigation, including a themselves were only in their infancy All these policies point to one corporate target. when the seminal cases on the corporate overriding thought: the consti- right against self-incrimination were tutional foundation underlying The current doctrine of decided. It is now abundantly clear that the privilege is the respect a corporate privilege against corporations can commit crimes in their government — state or federal self-incrimination is based corporate capacity, and it is common for — must accord to the dignity on a dated understanding corporations to have their own counsel and integrity of its citizens. To of corporations. — separate from the board of directors, maintain a fair state-individual Though the right against com- the CEO, and other corporate officers — balance, to require the govern- pelled self-incrimination has histori- who are capable of asserting rights on ment to shoulder the entire cally been viewed as a broad and fun- behalf of the corporation itself. load, to respect the inviolability damental right essential to the adver- In denying the self-incrimination of the human personality, our sary system, corporations currently privilege in Hale, the Supreme Court accusatory system of criminal have no ability to rely upon the Fifth relied on a notion of corporations that justice demands that the gov- Amendment right against self-incrimi- sounds nothing like how they are ernment seeking to punish an nation to resist compulsion by the gov- viewed, or treated, today: individual produce the evi- ernment. In Hale v. Henkel, the dence against him by its own Supreme Court first held that a corpo- [T]he corporation is a creature independent labors, rather ration did not have a privilege against of the state. It is presumed to than by the cruel, simple expe- compelled self-incrimination.30 A few be incorporated for the benefit dient of compelling it from his years later, the Court used the same of the public. It receives cer- own mouth. In sum, the privi- logic to find that an officer of a corpo- tain special privileges and lege is fulfilled only when the ration could not refuse production of a franchises, and holds them person is guaranteed the right corporation’s records on the basis that subject to the laws of the state to remain silent unless he the corporation’s records incriminated and the limitations of its char- chooses to speak in the unfet- the officer.31 Since then, the Court has ter. … Its rights to act as a cor- tered exercise of his own will.28 repeatedly confirmed these prior deci- poration are only preserved to sions and has upheld compelled pro- it so long as it obeys the laws of All these reasons the right against duction of documents from a partner- its creation. There is a reserved self-incrimination is so fundamental to ship, the Joint Anti-Fascist Refugee right in the legislature to the criminal justice system apply to cor- Committee, the Communist Party of investigate its contracts and SELF-INCRIMINATION porations, if not with the same force as Denver, and a local labor union.32 As find out whether it has exceed- to individuals then certainly with near recently as 1988, the Supreme Court ed its powers. It would be a equal force. The government’s burden reiterated its view on compelled pro- strange anomaly to hold that a and the accused’s right to the presump- duction by corporations (though it state, having chartered a cor- tion of innocence are no less important simply restated the precedents and did poration to make use of cer- in prosecutions of corporations, nor is not revisit the rationale).33 tain franchises, could not, in the preference for an accusatorial rather Importantly, however, these deci- the exercise of its sovereignty, than inquisitorial system of justice. sions are based upon the since-discard- inquire how these franchises Concerns about reliability of compelled ed premise that corporations are not had been employed, and testimony and the “cruel trilemma” of distinct legal entities capable of assert- whether they had been abused, self-accusation, perjury or contempt, ing their own rights but rather unde- and demand the production of are present with respect to corporations fined entities who rely upon corpora- the corporate books and and indeed may impose an increased tion officers to assert rights on their papers for that purpose.36 pressure on corporations to cooperate behalf. Thus, in Hale, the Court held with the government in criminal inves- that a corporate officer could be forced This rationale countenances a relation- tigations. Even the concern about gov- to testify and produce documents that ship of subservience and obeisance ernmental intrusion is relevant to cor- incriminated the corporation because between a corporation and the state porations. Though “our respect for the the documents did not incriminate him that bears no relationship to the cur- inviolability of the human personality personally. “The amendment is limited rent understanding of corporations and and of the right of each individual to a to a person who shall be compelled in their legal status, as set out in the more private enclave where he may lead a pri- any criminal case to be a witness against recent cases extending other constitu- vate life” may be less directly applicable himself,” the Court said in Hale. “[A]nd tional rights to corporations. The cur- to corporations, the belief that corpora- if he cannot set up the privilege of a rent economic and legal view of corpo- tions should be free from government third person, he certainly cannot set up rations is not that they are subjects of intrusion is fundamental, as is clear the privilege of a corporation.”34 the state, subject to demand for what-

52 NACDL.ORG THE CHAMPION ever the state wishes, but rather that tional protections. Prior to First rations’ financial well-being. they are independent legal entities that National Bank of Boston v. Bellotti, it And protecting the free-exercise work for the benefit of their sharehold- was thought that First Amendment rights of corporations like ers. As a result, one must wonder rights were available to corporations Hobby Lobby, Conestoga, and whether Hale’s assertion of the “sover- only for speech that materially affected Mardel protects the religious eignty” of the state over corporations is the corporation’s business interests. liberty of the humans who own still legally sound. That changed in Bellotti when the and control those companies.48 Court rejected “the proposition that For most other constitutionally speech that otherwise would be within In the criminal context, the Supreme protected rights, corporations the protection of the First Amendment Court has found that the protections of have been treated similarly loses that protection simply because its the Fourth and Sixth Amendments apply to individuals. source is a corporation.”44 This princi- to corporations. Indeed, in Hale v. Henkel Corporations were well-established ple was further confirmed in Citizens — the same case that established that but still rare at the time the Constitution United v. Federal Elections Commission, corporate officers could not assert the was adopted.37 Still, it did not take long where the Court said it had “recognized Fifth Amendment right against com- for the Supreme Court to bestow rights that First Amendment protection pelled self-incrimination — the Court upon corporations. In 1809, the Court extends to corporations. … The Court also held that the Fourth Amendment’s held that the Constitution granted cor- has thus rejected the argument that protection against unreasonable searches porations the right to sue in federal political speech of corporations or and seizures did apply to corporations: court.38 A decade later, the Court recog- other associations should be treated “[W]e do not wish to be understood as nized that the contracts clause of the differently under the First Amendment holding that a corporation is not entitled Constitution39 protected corporations simply because such associations are to immunity, under the 4th Amendment, from state laws impairing contracts.40 not ‘natural persons.’”45 Rather, against unreasonable searches and The largest expansion of corporate “[c]orporations and other associations, seizures. A corporation is, after all, but an constitutional rights came with the rati- like individuals, contribute to the ‘dis- association of individuals under an fication of the Fourteenth Amendment, cussion, debate, and the dissemination assumed name and with a distinct legal which stated most notably that no state of information and ideas’ that the First entity. In organizing itself as a collective shall “deprive any person of life, liberty, Amendment seeks to foster.”46 body it waives no constitutional immu- or property, without due process of law; In 2014, the Court also provided nities appropriate to such body.”49 Thus, nor deny to any person within its juris- religious freedom protections to cor- for example, it is indisputable that the diction the equal protection of the porations on the basis of a statute, the government must get a warrant before laws.”41 Though this amendment refers Religious Freedom and Restoration Act searching a corporation’s offices.50 It is only to “person[s],” it seems the of 1993, that protects “a person’s” exer- also clear that corporations have a Sixth Supreme Court always believed that cise of religion.47 Though the Court did Amendment right to trial by jury.51 corporations were entitled to its protec- not in that case need to reach the con- Most notably, as to the Fifth tion. Less than two decades after the stitutional question of whether the Amendment, each of its other protec- adoption of the amendment, before First Amendment free exercise clause tions — the grand jury clause, double argument in Santa Clara County. v. protects corporations, it noted the jeopardy clause, due process clause, and Southern Pacific Railroad Co., Chief broad personal rights that have been takings clause — have all been held to Justice Waite said, “The court does not given to corporations: apply to corporations. This is true even SELF-INCRIMINATION wish to hear argument on the question though each clause other than the tak- whether the provision in the Fourteenth A corporation is simply a form ings clause stems from the exact same Amendment to the Constitution, which of organization used by human language — in a single sentence — with forbids a State to deny to any person beings to achieve desired ends. the root being: “No person shall”: within its jurisdiction the equal protec- An established body of law tion of the laws, applies to these corpo- specifies the rights and obliga- No person shall be held to rations. We are all of opinion that it tions of the people (including answer for a capital, or other- does.”42 Two years later, the Court said shareholders, officers, and wise infamous crime, unless explicitly: “Under the designation of employees) who are associated on a presentment or indict- ‘person’ [in the Fourteenth with a corporation in one way ment of a Grand Jury, except Amendment] there is no doubt that a or another. When rights, in cases arising in the land or private corporation is included. Such whether constitutional or statu- naval forces, or in the Militia, corporations are merely associations of tory, are extended to corpora- when in actual service in time individuals united for a special purpose, tions, the purpose is to protect of War or public danger; nor and permitted to do business under a the rights of these people. For shall any person be subject for particular name, and have a succession example, extending Fourth the same offence to be twice of members without dissolution.”43 Amendment protection to cor- put in jeopardy of life or limb; In recent years, the extension of porations protects the privacy nor shall be compelled in any personal constitutional rights to corpo- interests of employees and oth- criminal case to be a witness rations has continued to expand, par- ers associated with the compa- against himself, nor be ticularly regarding the First ny. Protecting corporations deprived of life, liberty, or Amendment, further reflecting the from government seizure of property, without due process evolving view that a corporation is not their property without just of law; nor shall private prop- a mere collection of individuals but its compensation protects all those erty be taken for public use, own entity worthy of its own constitu- who have a stake in the corpo- without just compensation.52

54 NACDL.ORG THE CHAMPION In the 1930s, the Supreme Court v Therefore, corporations have a right porate right against self-incrimination held that the takings clause of the Fifth against compelled self-incrimination. is consistent with how the Court has Amendment applied to corporations interpreted the Fifth and Fourteenth such that a corporation whose property The Supreme Court would not have Amendments. Presumably, even incon- was taken by the government was entitled had the benefit of this syllogism when venient constitutional rights must nev- to just compensation.53 In the 1970s, the Hale was decided in 1906 because — ertheless be recognized and protected. Court held that in a criminal prosecution though Hale recognized that corpora- But in any event, for at least three rea- of a corporation, double jeopardy barred tions “can only be proceeded against by sons, such policy concerns — if raised an appeal by the United States from judg- due process of law”59 — the Supreme — would not counsel against reversing ments of acquittal entered under Rule Court had not yet recognized that the the archaic holding of Hale v. Henkel. 29(c).54 And, though the Supreme Court right against self-incrimination was, in First, even regarding individuals, the has not weighed in, the Ninth Circuit said fact, a due process right. However, in Fifth Amendment right against self- in the 1980s that corporations are also 1964, the Supreme Court held that the incrimination applies only to testimoni- protected by the Fifth Amendment grand due process clause of the Fourteenth al evidence; this would clearly remain jury clause, requiring an indictment for Amendment incorporated the right true with respect to corporations. infamous crimes.55 Similarly, due process against compelled self-incrimination,60 Second, in response to the individual rights have long been understood to completing the syllogism and making right against self-incrimination, apply to corporations. Not only did the clear that the right should apply to corpo- Congress and state governments have Supreme Court recognize in Hale that a rations just as it does to natural people.61 created immunity statutes that allow the corporation “can only be proceeded government to obtain information with against by due process of law,”56 but there A corporate right against self- the simple grant of immunity; such also exists an entire body of personal incrimination would not severely statutes or similar statutes could be used jurisdiction law based upon the due hamper law enforcement. to obtain corporate testimony. And process rights of corporations.57 Courts that have considered the finally, anecdotally, other countries have From a textual perspective, it is Fifth Amendment right against self- recognized a corporate right against impossible to reconcile that, under exist- incrimination have often warned of the self-incrimination without sacrificing SELF-INCRIMINATION ing Supreme Court precedent, the exact dangers that such a right would bring if their ability to investigate and prosecute same word in a single sentence (i.e., the applied to corporations. In Hale, the corporate criminal conduct. reference to “person” in the Fifth Amendment) has different definitions when it is being applied to the right against self-incrimination as opposed to The legal landscape has shifted since the right to grand jury indictment, the protection against double jeopardy, and Hale v. Henkel. Corporations have a the right to due process. In essentially all sensible argument that they should be other contexts besides the right against self-incrimination, constitutional pro- able to assert the Fifth Amendment tections applying to “persons” have been found to apply to corporations. And that protection against self-incrimination. is consistent with how the term “person” is typically interpreted in statutes. One recent 50-state survey of state laws Court said that allowing a corporation To expand on these points, it is found that 47 states have a broad defini- to assert a Fifth Amendment right notable that, even with regard to an tion of the term “person” that includes would permit a witness “to plead the individual’s right against self-incrimi- corporations as well as natural persons.58 fact that some third person might be nation, the Fifth Amendment is not The plain text of the Fifth incriminated by his testimony, even absolute. The right “protects an accused Amendment thus makes a compelling though he were the agent of such a per- only from being compelled to testify case that its protections cannot be dif- son.” The court concluded that “[a] against himself, or otherwise provide ferentiated in their application, privilege so extensive might be used to the State with evidence of a testimonial depending on which clause is being put a stop to the examination of every or communicative nature.”64 considered, as does the plain text of witness who was called upon to testify As early as 1910, the Court held that the Fourteenth Amendment, which before the grand jury with regard to the the Fifth Amendment did not prevent has always been understood to apply doings or business of his principal, the government from compelling a to corporations. A relatively simply whether such principal were an individ- defendant to put on a blouse that fit syllogism also makes the point: ual or a corporation.”62 In 1988, the him.65 More recently, the Court held that Court in Braswell v. United States noted a compelled blood sample and use of v Corporations are included in the that “recognizing a Fifth Amendment toxicology analysis did not violate the protections captured by the privilege on behalf of the records custo- Fifth Amendment.66 The Supreme Court Fourteenth Amendment’s due dians of collective entities would have a has said that “[i]n the case of a docu- process clause. detrimental impact on the government’s mentary subpoena, the only thing com- efforts to prosecute ‘white collar crime,’ pelled is the act of producing the docu- v Due process rights under the one of the most serious problems con- ment” and therefore “compliance with a Fourteenth Amendment include a fronting law enforcement authorities.”63 summons directing the taxpayer to pro- right against compelled self- These kinds of concerns are not rel- duce the accountant’s documents incrimination. evant to whether recognition of a cor- involved in these cases would involve no

NACDL.ORG SEPTEMBER/OCTOBER 2019 55 incriminating testimony within the pro- evidence to use against him, Congress Counsel representing a tection of the Fifth Amendment.”67 Thus, passed transactional immunity corporation should consider even if the Court recognizes a corpora- statutes that protected witnesses from asserting a right against self- tion’s right against self-incrimination, prosecution regarding “any transac- incrimination where apt and in the right would not protect the disclo- tion, matter or thing, concerning the client’s interest. sure of pre-existing nonprivileged docu- which he may testify, or produce evi- At this point, it seems clear ments. Though a corporation would be dence, documentary or otherwise.” that counsel representing entities able to argue that the act of production Thereafter, the Supreme Court held should consider raising a right against authenticated the documents in a way that compelling people to testify after compelled self-incrimination in that was equivalent to compelled testi- they were provided with transactional response to any government requests mony,68 it may have a difficult time immunity did not violate the Fifth for information that would implicate shielding from disclosure, for example, Amendment privilege against self- such a right. That is not to say that incriminating emails about a transac- incrimination.70 Given the early Court asserting a Fifth Amendment privilege tion or relevant financial records. rulings about the breadth of the Fifth against self-incrimination will be easy. The real change that might result Amendment, immunity statutes have With a century of Supreme Court from the recognition of a corporate “become part of our constitutional precedent standing in the way, the right against self-incrimination would fabric.”71 Thus, the essential Fifth odds of victory in the lower courts are be a process change: protection from Amendment dichotomy developed small until the issue reaches the self-incrimination might have an through the U.S. common law was one Supreme Court, meaning that the first effect on a corporation’s calculation in which the right against compelled corporation to take this approach will regarding whether to cooperate with a self-incrimination was broad on its likely be ordered to produce the self- government investigation and the face but did not prevent the govern- incriminating testimony. But as the manner of such cooperation. This is ment from getting information that it above analysis makes clear, the legal not to suggest that corporate coopera- felt it truly needed by providing prop- landscape has shifted significantly in tion would no longer be the norm if er immunity to the witnesses it wanted the century since Hale such that cor- the Supreme Court were to recognize a to compel. There is no reason why the porations have a more than nonfrivo- corporate right against compelled self- same system could not be used with lous argument that they ought incrimination. Indeed, as with natural regard to corporations. to be able to assert the Fifth persons who are targets of criminal Finally, if the Supreme Court Amendment protection against self- investigations, there are myriad rea- reconsiders the rule on corporate self- incrimination just as they can for the sons the pressure to cooperate with the incrimination, the United States would other rights protected by the Fifth and government will still be substantial in not be the first country to provide such Fourteenth Amendments. most cases, most notably, the credit protections to corporations. Multiple Clearly, not every corporate client the government gives for such cooper- countries with advanced criminal law is apt for such an approach, given the ation. Thus, at best, the recognition of systems provide for corporate protec- array of interests confronting a corpora- a corporate right against compelled tions against compulsory self-incrimi- tion facing governmental inquiry. For self-incrimination may alter, to some nation. Since at least 1938, corporations example, some corporations have inde- degree, how a corporation assesses its in England have at times relied upon pendent regulatory or other disclosure options with respect to a government “the existence of a privilege against obligations that would necessitate pro- investigation. And it would potentially compulsory self-incrimination by dis- viding the same information in any SELF-INCRIMINATION affect how the government gathers its covery or by answering interrogato- event. Others may be concerned about evidence and proves its case.69 ries.”72 In a 1982 case, a corporate reputational or other market-based Second, even if a corporate asser- defendant in a copyright case in risks arising from the assertion of a tion of its right against compelled self- England successfully challenged discov- right against self-incrimination. incrimination stymied a government ery orders on the ground that it might Corporations consider a host of strate- investigation, the government would expose the company to liability.73 In gic concerns when facing a government have an important trump card: a grant addition, the European Union has rec- inquiry, and many of the same concerns of immunity. As the individual right ognized that the government may not are relevant to the analysis of whether it against self-incrimination solidified compel from a corporation answers is advantageous to assert a privilege itself as a broad and fundamental right that might involve admissions by the against compelled self-incrimination. in the second half of the 20th century, corporation.74 The court recognized The resultant strategy will turn on sui legislatures (state and congressional) that providing the right would limit the generis concerns, but some factors introduced immunity statutes in an government’s “powers of investigation” counsel must consider as to advising attempt to compel individuals to testi- but asked whether those limitations corporate clients in this context include: fy. The government first passed a use were required “by the need to safeguard immunity statute, declaring that no the rights of the defence which the v Is the client a public or private statement or evidence shall be used Court has held to be a fundamental company? against the party that gave it. After the principle of the Community legal Supreme Court ruled that such a nar- order.”75 Though concerns about crimi- v Does the conduct at issue affect row immunity statute was insufficient nal investigations have sometimes top management or lower to overcome the assertion of a privi- caused courts to create exceptions to level employees? lege against self-incrimination, this rule,76 the point here is simply that because it did not prevent the govern- other countries have in fact provided v Is the government’s potential ment from using the witness’s testimo- corporations with protection against case apparently strong, or ny to seek out additional witnesses or compelled self-incrimination. relatively weak?

56 NACDL.ORG THE CHAMPION v Would there be negative (or, not be new ground for an attorney expe- 13. Hoffman v. United States, 341 U.S. potentially, positive) collateral rienced in representing corporations. 479, 486 (1951); see also Ullmann v. United consequences from fighting the Until now, defense attorneys have States, 350 U.S. 422, 427 (1956) (“The government? not considered whether a corporate privilege against self-incrimination serves client can resist, or at least not cooper- as a protection to the innocent as well as to v Would the corporation be eligible ate, with a government inquiry, on the the guilty, and we have been admonished for cooperation credit based on the basis of a corporate privilege against that it should be given a liberal facts of the case and how the issue self-incrimination. As defense attorneys application.”). surfaced to the government? consider their advice in such cases, they 14. John H. Wigmore, The Privilege should determine whether to recom- Against Self-Crimination; Its History, 15 HARV. v Is there information that would be mend that their client assert this privi- L. REV. 610, 619-20 (1902); John H. Langbein, subject to an assertion of the privilege and how such an assertion will The Historical Origins of the Privilege Against lege that the corporation would impact the myriad other considerations Self-Incrimination at Common Law, 92 MICH. want to withhold? impacting the best strategic course. It L. REV. 1047, 1073 (1994) (discussing will not be apt in all cases, but for the Leonard Levy, Origins of the Fifth v Without the information that the right client, the time is ripe to explore Amendment: The Right Against Self- corporation would want to withhold whether the Fifth and Fourteenth Incrimination (2d ed. 1986)); Miranda, 384 on privilege grounds, would the gov- Amendments require the Supreme U.S. at 458-60 (describing the history of the ernment be able to prove its case? Court to recognize a corporate right privilege). against compelled self-incrimination. 15. See supra note 14 Wigmore, 15 All these factors will have to be care- © 2019, National Association of HARV. L. REV. at 625. fully considered on a case-by-case basis, Criminal Defense Lawyers. All rights 16. Miranda, 384 U.S. at 459 (citing along with numerous others, as counsel reserved. Haller & Davies, The Leveller Tracts 1647– seeks the best result for her client when 1653, at 454 (1944)). facing a government investigation or Notes 17. See supra note 14 Wigmore, 15 prosecution. The attorneys for the com- 1. Hale v. Henkel, 201 U.S. 43, 70 (1906) HARV. L. REV. at 625. SELF-INCRIMINATION pany will also have to work through some (overruled on other grounds). 18. Id. practical issues as the client attempts to 2. See Braswell v. United States, 487 U.S. 19. Id. at 626 (citing 1641, St. 16 Car. I. c. assert the Fifth Amendment on behalf of 99, 102-19 (1988) (collecting cases and 11, § 4 (no person “exercising spiritual or the company, including for example, how discussing the history of the right against ecclesiastical power, authority, or to direct the employees of the company to self-incrimination as it pertains to jurisdiction,” shall “ex officio, or at the assert the right on behalf of the company. corporations). instance or promotion of any other However, these practical issues should be 3. Batson v. Kentucky, 476 U.S. 79 (1986) whatsoever, urge, enforce, tender, give, or relatively easy to navigate for experienced (overruling Swain v. Alabama, 380 U.S. 202 minister” to any person “any corporal oath, counsel. Corporate employees cannot (1965)). whereby he or they shall or may be waive the corporation’s attorney-client 4. Crawford v. Washington, 541 U.S. 36 charged or obliged to make any privilege and an employee must generally (2004) (overruling Ohio v. Roberts, 448 U.S. presentment of any crime or offence, or to keep an employer’s confidences.77 56 (1980)). confess or to accuse himself or herself of Corporations therefore often direct 5. United States v. Booker, 543 U.S. 220 any crime or offence, delinquency, or employees to assert an attorney-client (2005). misdemeanor, or any neglect, matter, or privilege that belongs not to the individ- 6. This article discusses the right of a thing, whereby or by reason whereof he or ual testifying but instead to the compa- corporation to assert its Fifth Amendment she shall or may be liable or exposed to any ny.78 In that context, attorneys for the right against self-incrimination. The censure, pain, penalty, or punishment company typically work closely with the analysis would be the same for other whatsoever”)). attorneys for the individual — when the organizations or associations, and indeed 20. Id. at 633–34. individual is separately represented — to some of the cases discussed herein 21. R.H. Helmholz, Origins of the discuss the scope of the privilege. In some relate to partnerships, labor unions or Privilege Against Self-Incrimination: The Role instances, company counsel may accom- other organizational entities. However, of the European Ius Commune, 65 N.Y.U. L. pany the individual to a government for clarity and brevity the article refers REV. 962, 967 (1990). interview to ensure that the privilege is only to corporations. 22. Miranda, 384 U.S. at 458 n.27 (citing protected. In others, company counsel is 7. Citizens United v. Fed. Election Maimonides, Mishneh Torah (Code of Jewish available for consultation should a poten- Comm’n, 558 U.S. 310 (2010). Law), Book of Judges, Laws of the Sanhedrin, tial privilege issue arise and need to be 8. Burwell v. Hobby Lobby Stores, Inc., c. 18, 6, III Yale Judaica Series 52–53; Lamm, addressed on the spot. Assertion of the 573 U.S. 682 (2014). The Fifth Amendment and Its Equivalent in corporation’s Fifth Amendment privilege 9. The Supreme Court has not decided the Halakhan, 5 JUDAISM 53 (Winter 1956)). against self-incrimination would likely whether the right to grand jury indictment 23. Steven M. Salky & Paul B. Hynes Jr., work the same way: The individuals extends to corporations, but the Ninth The Privilege of Silence: Fifth Amendment empowered to act on behalf of the corpo- Circuit has. All other Fifth Amendment Protections Against Self-Incrimination (2015) ration would decide to assert the privilege rights have been found by the Supreme available at http://apps.americanbar.org/ on behalf of the corporation and would Court to apply to corporations. abastore/products/books/abstracts/5090120 then instruct employees not to answer 10. U.S. CONST. amend. V. chap1_abs.pdf. questions that would incriminate the cor- 11. Miranda v. Arizona, 384 U.S. 436, 460 24. Id. poration. Preparing a witness not to dis- (1966). 25. See Bram v. United States, 168 U.S. close incriminating information would 12. Kastigar v. United States, 406 U.S. 532, 557 (1897) (“The attempt on the part need to be done carefully, but it would 441, 444 (1972). of a police officer to obtain a confession by

NACDL.ORG SEPTEMBER/OCTOBER 2019 57 interrogating has been often reproved by and indeed the Virginia Company of How American Businesses Won Their Civil the English courts as unfair to the prisoner, London, a corporation, was integral to the Rights, Adam Winkler provides an and as approaching dangerously near to a founding of Jamestown in 1607 — interesting discussion of Santa Clara violation of the rule protecting an accused according to a 1917 survey by a Stanford County, and the suspect nature of the from being compelled to testify against historian, in the colonies in the years assertions that the Fourteenth himself.”). immediately preceding the Constitutional Amendment was meant to apply to 26. Murphy v. Waterfront Comm’n of N.Y. Convention, there existed only two banks, corporations. Given that there is no doubt Harbor, 378 U.S. 52, 55 (1964). two insurance companies, six canal that, as of today, the protections of the 27. Id. companies, and two toll bridge operators. Fourteenth Amendment have been 28. Miranda, 384 U.S. at 460 (internal See supra note 35 Winkler at 3–4. applied to corporations, this article does citations and quotations omitted). 38. Bank of U.S. v. Deveaux, 9 U.S. 61 not explore whether it was meant to do so. 29. See, e.g., Hale, 201 U.S. at 76. (1844). 43. Pembina Consol. Silver Mining & 30. Id. at 70. 39. U.S. CONST. art. I, § 10, cl. 1 (“No State Milling Co. v. Commonwealth of Pa., 125 U.S. 31. Wilson v. United States, 221 U.S. 361, shall enter into any Treaty, Alliance, or 181, 189 (1888). 377–78 (1911). Confederation; grant Letters of Marque and 44. First Nat’l Bank of Boston v. Bellotti, 32. See Bellis v. United States, 417 U.S. Reprisal; coin Money; emit Bills of Credit; 435 U.S. 765, 784 (1978). 85, 89 (1974) (citing cases). make any Thing but gold and silver Coin a 45. Citizens United v. Fed. Election 33. Braswell, 487 U.S. at 102-19 Tender in Payment of Debts; pass any Bill of Comm’n, 558 U.S. 310, 342–43 (2010) (discussing the long history of the right Attainder, ex post facto Law, or Law (quoting First Nat’l Bank of Boston, 435 U.S. against self-incrimination as it pertains to impairing the Obligation of Contracts, or at 776). corporations). grant any Title of Nobility.”). 46. Id. at 343 (quoting First Nat’l Bank of 34. Hale, 201 U.S. at 70. 40. Trustees of Dartmouth College v. Boston, 435 U.S. at 776). In a 2011 law review 35. Adam Winkler, We the Corporations: Woodward, 17 U.S. 518, 621 (1819) (“The article, Christopher Slobogin highlighted How American Businesses Won Their Civil constitution speaks of contracts, and ought this expansion of First Amendment rights Rights 164 (2018) (quoting William to include all contracts for property or to argue that “if corporations can possess Blackstone, Commentaries) (citing Kathleen valuable privileges. There is no distinction and exercise a right to speak (per Citizens F. Brickey, Corporate Criminal Accountability: or discrimination made by the constitution United), they can possess and assert a right A Brief History and an Observation, 60 WASH. itself, which will exclude this case from its not to speak.” See Christopher Slobogin, U. L. Q. 393, 396 (1982)). protection.”). Citizens United and Corporate and Human 36. Hale, 201 U.S. at 74–75. 41. U.S. CONST. amend. XIV. Crime, 41 STETSON L. REV. 127, 135 (2011). 37. Though corporations date back 42. Santa Clara Cty. v. S. Pac. R.R. Co., 118 47. Burwell v. Hobby Lobby Stores, Inc., hundreds of years before the founding — U.S. 394, 394 (1886). In We the Corporations: 573 U.S. 682, 707 (2014). 48. Id. at 706–07. NACDL® STRIKE FORCE 49. Hale, 201 U.S. at 76. 50. See Brandon Garrett, The NACDL’s Strike Force n Subpoenaed for properly representing a client Constitutional Standing of Corps., 163 U. PA. will review your case n Threatened with contempt at no cost when you L. REV. 95, 122-128 (discussing the Fourth have been: n Hit with an improper motion to disqualify you from a case 05312019 Amendment protections). 51. Southern Union Co. v. United States, FOR IMMEDIATE ASSISTANCE 567 U.S. 343, 352 (2012).

SELF-INCRIMINATION CALL THE LAWYERS’ STRIKE FORCE CIRCUIT COORDINATOR NEAREST YOU. 52. U.S. CONST. amend. V. 53. Russian Volunteer Fleet v. United STRIKE FORCE CHAIR 2nd Circuit 6th Circuit 10th Circuit Martin S. Pinales Joshua L. Dratel Stephen Ross Johnson Michael L. Stout States, 282 U.S. 481, 492 (1931). This Cincinnati, OH New York, NY Knoxville, TN Las Cruces, NM (513) 252-2750 (212) 732-0707 [email protected] (575) 524-1471 fundamental principle had already been [email protected] [email protected] [email protected] recognized in Hale. See Hale, 201 U.S. at 76 7th Circuit STRIKE FORCE CO-CHAIRS 3rd Circuit Richard Kammen Lisa Monet Wayne (“In organizing itself as a collective body it Howard M. Srebnick Steven Feldman Indianapolis, IN Denver, CO Miami, FL Pleasantville, NJ (317) 236-0400 (303) 860-1661 waives no constitutional immunities (305) 371-6421 (609) 272-8989 [email protected] [email protected] [email protected] [email protected] appropriate to such body. Its property Tony Thedford 11th Circuit cannot be taken without compensation.”). Susan W. Van Dusen Alan Silber Chicago, IL David O. Markus Coral Gables, FL Hackensack, NJ (312) 614-0866 Miami, FL 54. United States v. Martin Linen Supply (305) 854-6449 (201) 639-2014 [email protected] (305) 379-6667 [email protected] [email protected] [email protected] Co., 430 U.S. 564 (1977). 8th Circuit Martin G. Weinberg 4th Circuit Andrew S. Birrell Howard M. Srebnick 55. United States v. Yellow Freight Sys., Boston, MA John Kenneth Zwerling Minneapolis, MN Miami, FL (617) 227-3700 Alexandria, VA (612) 333-9500 (305) 371-6421 Inc., 637 F.2d 1248, 1254 (9th Cir. 1980). [email protected] (703) 684-8000 [email protected] [email protected] Though the court said that the Elkins Act [email protected] CIRCUIT COORDINATORS 9th Circuit Susan W. Van Dusen violation with which the corporation was 5th Circuit Alfred Donau, III Coral Gables, FL 1st Circuit David Gerger Tucson, AZ (305) 854-6449 charged was not an “infamous” crime, it Frank D. Inserni-Milam Houston, TX (520) 795-8710 [email protected] San Juan, PR (713) 221-7000 [email protected] went on to say that a crime that was an (787) 763-3851 davidgerger@ DC Circuit infamous crime as to a corporation ﬁ[email protected] quinnemanuel.com David A. Elden Henry W. Asbill Los Angeles, CA Washington, DC (because, for example, Congress declared it Martin G. Weinberg Frank Jackson (310) 478-3100 (202) 349-8007 Boston, MA Dallas, TX [email protected] hasbill@buckleyﬁrm.com to be so) would require a grand jury (617) 227-3700 (214) 871-1122 [email protected] [email protected] Martín A. Sabelli indictment. San Francisco, CA YOU NEVER Kent A. Schaffer (415) 298-8435 56. Hale, 201 U.S. at 76. Houston, TX [email protected] STAND ALONE 57. See, e.g., International Shoe Co. v. (713) 574-9412 [email protected] State of Wash., 326 U.S. 310, 317 (1945) (“Those demands may be met by such con-

58 NACDL.ORG THE CHAMPION tacts of the corporation with the state of the authentication’ rationale appears to (Nov. 25, 2016), available at http:// forum as make it reasonable, in the context be the prevailing justification for the oecdinsights.org/2016/11/25/a-corporate of our federal system of government, to Fifth Amendment’s application to -right-to-silence-and-privilege-against require the corporation to defend the partic- documentary subpoenas.”). -self-incrimination. ular suit which is brought there.”). 69. See generally U.S. Dep’t of Justice, 75. Okrem SA ¶ 32; see also Scott A. 58. Debbie Haskins, What Is a Person?, U.S. Attorneys’ Justice Manual tit. 9 § 9- Trainor, A Comparative Analysis of National Conference of State Legislatures 28.000 (Principles of Federal Prosecution of a Corporation’s Right Against Self- (2014), available at http://www.ncsl.org/ Business Organizations), available at Incrimination, 18 FORDHAM INT’L L.J. documents/lsss/tue_haskins_handout1.pdf; https://www.justice.gov/jm/jm-9-28000- 2139 (1994). see also Debbie Haskins, Default Definitions principles-federal-prosecution-business- 76. Lynn Loschin, A Comparative Law of ‘Person’ in State Statutes, National organizations. Approach to Corporations and the Privilege Conference of State Legislatures (2014) avail- 70. Brown v. Walker, 161 U.S. 591, 620 Against Self-Incrimination, 30 U.C. DAVIS L. able at http://www.ncsl.org/documents/ (1896). REV. 247, 258-60 (1996) (discussing lsss/tue_haskins_handout2.pdf. 71. Ullmann v. United States, 350 U.S. exceptions). 59. Hale, 201 U.S. at 76. 422, 438 (1956). Ullman was specifically 77. United States v. Chen, 99 F.3d 1495, 60. Malloy v. Hogan, 378 U.S. 1, 6 (1964). discussing the Compulsory Testimony Act 1502 (9th Cir. 1996). 61. All of the provisions of the Fifth of 1893, which the Kastigar Court 78. United States v. Chen, 99 F.3d Amendment have been incorporated described as “the model for almost all 1495, 1502 (9th Cir. 1996) (“[T]he power against the states with the exception of the federal immunity statutes.” Kastigar, 406 to waive the corporate attorney-client right to a grand jury indictment, which the U.S. at 447 n.21. privilege rests with the corporation’s Ninth Circuit has held applies to 72. River East Supplies Ltd. R (On the management and is normally exercised corporations. The Supreme Court is primed Application Of) v. Crown Court at by its officers and directors. … to incorporate the Sixth Amendment’s Nottingham [2017] EWHC 1942 (Admin) [W]hen control of a corporation passes to right to unanimous juries this term. See available at http://www.bailii.org/ew/ new management, the authority to assert Ramos v. Louisiana, No. 18-5924, 139 S. Ct. cases/EWHC/Admin/2017/1942.html (dis- and waive the corporation’s attorney- 1318 (2019), cert. granted. cussing the privilege against self-incrimina- client privilege passes as well.”); SELF-INCRIMINATION 62. Hale, 201 U.S. at 69-70. tion in English law generally through cases Commodity Futures Trading Comm’n v. 63. Braswell, 487 U.S. at 115 (citing that involved corporations). Weintraub, 471 U.S. 343, 348, 105 S. Ct. John Conyers Jr., Corporate and White Collar 73. Id. (discussing Rank Film 1986, 1991, 85 L. Ed. 2d 372 (1985) (“The Crime: A View by the Chairman of the House Distributions Ltd. and others v. Video administration of the attorney-client Subcomm. on Crime, 17 AM. CRIM. L. REV. 287, Information Centre [1982] AC 380). privilege in the case of corporations, 288 (1980)). 74. Okrem SA v. Commission, Case however, presents special problems. As 64. Schmerber v. California, 384 U.S. 757, 374/87, [1989] E.C.R. 3283, 3351, available at an inanimate entity, a corporation must 761 (1966). https://eur-lex.europa.eu/legal- act through agents. A corporation cannot 65. Holt v. United States, 218 U.S. 245, content/EN/TXT/HTML/?uri=CELEX:61987C speak directly to its lawyers. Similarly, it 247 (1910). J0374&from=GA. Belgium also appears to cannot directly waive the privilege when 66. Schmerber, 384 U.S. at 761. have recognized a right against self- disclosure is in its best interest. Each of 67. Fisher v. United States, 425 U.S. 391, incrimination for corporations. See A these actions must necessarily be 410 n.11 & 414 (1976). Corporate Right to Silence and Privilege undertaken by individuals empowered to 68. Id. at 413 n.12 (“The ‘implicit Against Self-Incrimination?, OECD Insights act on behalf of the corporation.”). n

About the Authors Mark Rochon practices in the area Addy R. Schmitt represents individuals Ian Herbert focuses his practice on white of white collar and corporations in collar criminal investi- defense in criminal white collar matters gations and litiga- and civil matters. He including internal and tion, representing often represents grand jury investi- companies and exec- multinational compa- gations, trial, and utives through the nies in connection post-trial proceed- range of interactions with potential or ings. In addition, she with prosecutors and ongoing Securities is often called upon regulators. In addi- and Exchange Com- to conduct sensitive tion, he handles all NACDL MEMBER mission or Depart- NACDL MEMBER internal investigations. NACDL MEMBER aspects of broad, ment of Justice investigations, particularly Ms. Schmitt writes and speaks frequently multicountry investigations. in FCPA matters. on criminal justice issues. Ian Herbert Mark Rochon Addy R. Schmitt Miller & Chevalier Miller & Chevalier Miller & Chevalier Washington, D.C. Washington, D.C. Washington, D.C. 202-626-1496 202-626-5819 202-626-5837 EMAIL [email protected] EMAIL [email protected] EMAIL [email protected] WEBSITE www.millerchevalier.com WEBSITE www.millerchevalier.com WEBSITE www.millerchevalier.com TWITTER @millerchevalier TWITTER @millerchevalier TWITTER @millerchevalier

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