03/13/2014 05:58 pm ET Updated May 13, 2014

The Bridge Scandal and the Fifth Amendment

New Jersey's legislative panel investigating the Chris Christie bridge scandal wants documents. The panel wants emails, texts, notes, diaries -- anything that Bridget Anne Kelly or Bill Stepien have relating to the lane shutdowns at the George Washington Bridge. The panel is confident there's more to this story than a few emails saying "time for some traffic problems in Fort Lee."

But these former Christie aides have refused to turn over the subpoenaed documents. They have asserted their Fifth Amendment right against self-incrimination not only with respect to testimony but also with respect to documents. On Tuesday they argued their case to a New Jersey judge, who promised to rule soon. In the meantime their resistance has come as a disappointment to those seeking answers, such as the New Jersey legislature, and to the many liberals relishing Christie's downfall.

But beyond the immediate politics (and entertainment value), the scandal raises one of the most nettlesome areas of criminal law: when does the Fifth Amendment protect documents?

The answer should not depend on our desired outcome in this particular case; rather, it should depend on our view of the proper relationship between the government, with its power to investigate and criminally prosecute, and individuals. The Fifth Amendment rule we decide upon must apply to the Stepiens and Kellys of the world as well as to the Arthur Millers and Lillian Hellmans.

Despite the legal complexity, Kelly and Stepien have strong arguments that the Fifth Amendment does protect their right not to turn over at least some of the subpoenaed documents. To understand why, we must travel through the Supreme Court's changing view on the subject, the blanket rules, the exceptions, and the exceptions to the exceptions.

More than 125 years ago, the Supreme Court adopted a blanket rule: the government cannot compel a person to produce papers, even business records, in connection with a criminal case. Such government intrusions into someone's private sphere echoed the tyranny and "oppressions" of the English Crown. The Supreme Court applied the same rule to subpoenas from Congress or state legislatures.

But then in 1976 the Court reversed course and held that the Fifth Amendment generally does not protect documents and that the government can compel their production. By 1976 the Court focused less on "oppression" and more on the text of the Fifth Amendment to hold that the Fifth Amendment protects testimony but not pre-existing documents.

But this blanket rule that the Fifth Amendment does not protect documents came with a seemingly small exception -- the "act of production" doctrine -- which the Supreme Court has since expanded significantly. When the physical act of producing the document would itself incriminate, even putting aside the content of the document, the government cannot compel a person to produce the document. And it is this exception, the act of production doctrine, that Kelly and Stepien rely upon.

The act of production exception works as follows. Suppose the police want to know whether anyone in a certain neighborhood possesses machine guns. They issue a subpoena to everyone demanding that they produce any machine guns in their homes. George produces a machine gun in response to the subpoena and the government prosecutes him for possession of a machine gun.

At George's trial, the government must prove he possessed the machine gun. How? Well, he gave it to the police, and so the police can testify that it was in his possession. His "act of production," has incriminated him because it has revealed that he possessed the gun. Since the government compelled him to produce the gun, it has violated George's Fifth Amendment right against self-incrimination.

The same principle applies to documents. If producing them itself would provide incriminating information, then requiring such production would violate the Fifth Amendment. But we must not look to the content of the document to see whether that content incriminates; rather, we must look to whether the physical act of producing it will incriminate.

Producing a document can incriminate in numerous ways: first, it shows the document exists. Second, it shows that it lies in the files of the witness, which shows that it is genuine and not simply a forgery, for example. Finally, it also shows that the witness herself, Kelly in this case, thinks that the document is relevant. Since Kelly knows more about this scandal than the investigators, the fact that she thinks the document is relevant to the lane closures is itself potentially incriminatory.

Here is a completely made-up example to illustrate how simply finding and producing an email might incriminate Kelly beyond the content of the email itself. Suppose, in response to the subpoena, Kelly looks through her old emails and sees on day two of the lane closures an email in which she said, "I managed to get into work early today!" Is she merely reporting her daily activity, unrelated to the lane closures, or is she jokingly referring to how little traffic there was compared to the situation in Fort Lee? If the latter, then the email relates to the bridge scandal and she must produce it. But in producing it she provides at least some evidence that its otherwise ambiguous meaning relates to the bridge scandal. She has been a witness against herself.

Confused? The law is hopelessly unclear about when production incriminates in such a way that the person is privileged against producing the documents. Even the above discussion leaves out further nuances, exceptions to the exception such as the somewhat wistfully named "foregone conclusion" doctrine. Courts thus struggle to decide when the Fifth Amendment protects an individual from producing documents and when it does not.

Where does this leave Kelly and Stepien? Under current doctrine they have a strong argument that producing at least some of the documents will itself, by the act of production, incriminate them. Under current law they win -- at least with respect to some of the subpoenaed documents. But the Supreme Court has hinted at a willingness to revisit the issue more broadly. If so, perhaps Kelly and Stepien will enjoy the privilege of bringing a case to the Supreme Court that kills once and for all the complicated act of production doctrine and returns us to the old, blanket rule that the Fifth Amendment protects documents merely because their content would be incriminating.