Weary as we all are of the daily news about the Trump administration, it occasionally foreshadows general issues that could achieve much greater importance in the future.
This past week, as Donald Trump and son-in-law, Jared Kushner, “lawyered up,” and Mike Flynn’s prospects looked increasingly bleak, there was speculation that everyone’s business records would soon be the subject of subpoenas.
Not so fast, came the counter-argument from Flynn’s attorneys; the Citizens United decision might extend to protection of corporate records. If an individual has the right to refuse to testify on the grounds of self-incrimination, so might the corporation refuse to share it’s “testimony” (corporate records) on the same grounds.
A desperate claim, for sure, but the idea of civil rights for corporations, once elevated to that of the individual, was certain to raise bigger issues down the line. If money is the corporation’s constitutionally protected “voice,” why wouldn’t all the protections for the individual against self-incrimination be equally valid for corporations?
The favorite fantasy scenario has always been around attempting to convict a corporation for first degree murder. Who would potentially serve the sentence? You can’t execute a corporation or lock it up for life.
Now we are seeing the real nub of the question. If a corporation succeeds in arguing its fifth amendment right to remain silent; and sharing its records is deemed to be a violation of that right; we might as well wave goodbye to legal resolution of disputes, entirely.
It’s unlikely that such an argument would succeed in the normal course of court proceedings; but given the unprecedented nature of the circumstances and recent partisan incursions on the justice department, it’s worth considering.
One would naturally think that the corporation, like any citizen, could still be compelled to share its records, but the flawed Supreme Court logic that awarded civil rights to corporations might just as easily favor the argument that documents, like money, are a form constitutionally protected “voice” for the corporation. It would then be a fairly simple matter to extrapolate from that narrow protection to a broader protection against self-incrimination through documents for all citizens.
Poof! There go the underpinnings of our justice system.