Bending Toward Justice: Understanding Mueller’s subpoena to the Trump Organization for documents

The New York Times reported on Thursday that the Special Counsel served a grand jury subpoena on the Trump Organization seeking documents related to Russia.

Trump Organization lawyers brushed off stories published on Thursday that Robert Mueller’s prosecutors had secured a grand jury subpoena for documents from the company. That’s “old news,” Alan Fuertas, a Trump Organization attorney said in a statement received by USA Today.“Since July 2017, we have advised the public that the Trump Organization is fully cooperative with all investigations, including the special counsel, and is responding to their requests.”

But legally, there can be a different meaning attached to documents produced voluntarily and those produced pursuant to a grand jury subpoena. Which is why the subpoena at this stage of the investigation is so interesting, and potentially dangerous for President Trump and his family.

Producing documents in response to a grand jury subpoena can give rise to incriminating inferences. What does that mean? It means that when a corporation produces documents in response to a grand jury subpoena, it is effectively testifying to the existence, possession, and authenticity of the documents, as well as its belief that the documents it’s producing are responsive to the subpoena. When those conditions are met, the documents are more likely to meet evidentiary standards for use in a criminal trial.

For discussion purposes only, let’s say that the grand jury’s subpoena asked the Trump Organization to produce documents (including emails, texts, voicemails) reflecting communications between Donald Trump and Yevgeny Prigozhin, the Russian oligarch who was indicted by the Special Counsel along with the Russian troll factory he funded. (This is just an example. 50 States of Blue doesn’t know the contents of the subpoena). If any such documents exist, and are produced by the Trump Organization, the production itself would by an admission that the documents existed prior to the subpoena, were held by the Trump Organization, and are authentic. That would be pretty incriminating for Trump.

Because of this incriminating inference, grand jury subpoenas can raise Fifth Amendment concerns. Individuals who are served with a grand jury subpoena documents will often request that prosecutors grant what’s called “act of production immunity” — meaning that prosecutors agree that they will not use the mere act of producing documents against the individual as the investigation proceeds or in the trial.

But the U.S. Supreme Court has ruled that corporations are not entitled to protection under Fifth Amendment. As a result, a corporation may neither obtain “act of production immunity” nor refuse to produce documents in response to a grand jury subpoena. Corporations that do not respond at all to grand jury subpoenas can be held in contempt of court.

The New York Times report on Mueller’s grand jury subpoena to the Trump Organization says that the documents requested relate to matters that predate Trump’s announcement of his presidential campaign in July, 2015. CNN reported in January that the Trump Organization had provided documents to the Special Counsel’s office largely from the period after Trump announced his run up to his inauguration.

If the Times report is correct, it suggests that the Special Counsel’s office is investigating Trump’s relationships and business dealings in Russia, and with Russians, before he launched his presidential bid. In other words, what kind of leverage did Russia have over Trump?

If the Trump Organization has such documents in its possession, and produces them, it will be a significant admission of Trump’s entanglements with Russia, when he repeatedly said during the campaign that he had nothing to do with Russia.

So when the lawyer for the Trump Organization says the grand jury subpoena is “old news,” don’t believe him.