William H. Rehnquist: We'll hear argument first this morning in Number 86-1753, John Doe against the United States. Mr. Timbie, you may begin whenever you wish.
Richard E. Timbie: Mr. Chief Justice, and may it please the Court: This case involves the Fifth Amendment implications of a court order requiring a Grand Jury target to waive foreign bank secrecy requirements. The facts can be stated simply. John Doe is under Grand Jury investigation for tax offenses. The Grand Jury knows that Doe has bank accounts in the Cayman Islands and Bermuda and believes that the records of those accounts would provide evidence sufficient to bring an indictment. The Grand Jury has tried to get those records by serving subpoenas on the U.S. branches of those foreign banks, but has been unsuccessful because the banks have objected on the ground of foreign bank secrecy laws that prohibit disclosure of bank information without the consent of the customer. The United States Attorney, therefore, filed this action in the District Court.
Antonin Scalia: Excuse me. Is that binding on the United States authorities?
Richard E. Timbie: The--
Antonin Scalia: The foreign bank secrecy laws?
Richard E. Timbie: --No, Your Honor, it's not binding, and, in fact, it may not even be pertinent, but the Government feels that it would be helpful in obtaining the records in a show cause proceeding against the banks in the United States.
Antonin Scalia: But you could seek to compel the banks to do it despite those foreign laws and take some action against the domestic subsidiaries of the bank?
Richard E. Timbie: Yes, Justice Scalia. That is precisely what was done in the Bank of Nova Scotia case, and it is what the Government acknowledges in a footnote in its brief. It proposes to do in this case. It simply wants this consent as a sort of thumb on the scale in that balancing test that will be used in that proceeding. The District Court originally denied the Government's motion for an order requiring John Doe to sign the consent directive, and the U.S. Attorney appealed the denial to the Fifth Circuit which reversed and remanded. On remand, Doe was ordered to sign the document and refused to do so, was held in civil contempt, and sanctions were stayed pending this appeal. The directive that Doe has been ordered to sign by the court below makes four statements. It says that Doe directs any bank to disclose records of accounts over which he has signatory authority. Excuse me. Over which he has the right of withdrawal. That that direction is irrevocable. That that direction is given pursuant to a court order, and that that direction is intended to constitute consent for purposes of Bermuda and Cayman law. We contend that that order below violates Doe's Fifth Amendment rights because the consent directive, once signed, would be a compelled communication and its contents would be used to incriminate Doe. Now, the Government concedes compulsion and incrimination, and we feel there is no serious doubt that what we are dealing with here is a communication. After all, once signed, the document will be a statement by Doe to the banks that he directs them to disclose records, that he won't revoke his direction, and that he will not later argue that it's not a valid consent.
William H. Rehnquist: But what's the testimonial about that?
Richard E. Timbie: Mr. Chief Justice, our contention is that the Fifth Amendment test is not whether the statement is testimonial in the narrow sense that the Government argues; that is, that it gives the Government information that is directly relevant to the case or could be used as leads; but the test that this Court has used in every case and that is the rational in every case is whether the compelled statement is testimonial or communicative as opposed to a non-communicative act or, in the case of a handwriting exemplar or voice print, a statement that isn't intended to be used for its content in any way.
Harry A. Blackmun: Mr. Timbie, if the scene were changed, say, to the State of Colorado, would these records be available?
Richard E. Timbie: Absolutely, Your Honor.
Harry A. Blackmun: Suppose Colorado passed a law saying they passed a bank secrecy act, would it be constitutional?
Richard E. Timbie: I would assume not. I simply don't know. I would assume there would be a supremacy problem.
Harry A. Blackmun: So, it's foreign venue that really is the sticker here. What was the... does the record disclose any business reasons for having accounts in the Cayman Islands?
Richard E. Timbie: The record discloses that Doe was involved in international oil trading business.
Harry A. Blackmun: If one walks down the streets of Nassau, which is foreign bank after foreign bank, and I haven't been in the Cayman Islands, but I suppose it's the same reason, is... are they there because they are refugees for what, tainted money?
Richard E. Timbie: Mr. Justice Blackmun, they are there for all sorts of reasons, of course, but we feel that the problem... there is obviously a concern that the Government has in this case that it is unable under certain circumstances to obtain records of those foreign accounts. We feel that the pertinent issue here is whether the means that they've chosen in this case to obtain the records offends the Fifth Amendment. That is, whether when they want to obtain those records, they can compel an unwilling, unimmunized defendant or accused to speak on the Government's behalf and then use the content of that speech to obtain the records. I would point out that there's no question that, as Justice Scalia mentioned, there's no question that the Government has an alternative means of getting these records that would involve no Fifth Amendment problem, which would simply be a show cause order against the banks that have already been served subpoenas, and then a contempt hearing in which the banks can be made to provide the records, unless they could persuade the judge that the Cayman Islands interest in the enforcement of its bank secrecy laws outweighs the U.S. interest in the enforcement of its criminal tax laws. And so far, very few banks have been able to win that balance of test.
John Paul Stevens: Mr. Timbie, taking Justice Blackmun's question about a Colorado bank one step further, supposing your client had a safe deposit box in the Colorado bank and the Government wanted the key, could they get it from him?
Richard E. Timbie: That's an interesting question. I would argue that the act of producing the key might have testimonial aspects--
John Paul Stevens: Very similar to this case.
Richard E. Timbie: --in John Doe, but setting that aside, yes, they could, and they could because they were using a means--
John Paul Stevens: But would you set that aside? Would you set aside the testimonial significance of delivering the key?
Richard E. Timbie: --Oh, no, I certainly wouldn't, but I thought you were asking a more general question as to--
John Paul Stevens: Whether they could require him to deliver the key.
Richard E. Timbie: --They could certainly give him acts of production immunity and require delivery.
John Paul Stevens: No, no.
Richard E. Timbie: Or if they knew--
John Paul Stevens: Without giving any kind of immunity.
Richard E. Timbie: --If they knew to a certainty that the key existed and they had it, they could make him give it and that's because he would not be required to communicate in any way in order to fulfill the order of the court.
John Paul Stevens: They could just subpoena the key and he'd have to respond to the subpoena by delivering it?
Richard E. Timbie: Unless he could establish in a Huffman hearing that the Government would be learning of the existence of the key or of his possession of it and that fact would be incriminating under the Fisher rational. He would have to give it.
John Paul Stevens: Well, don't we assume here the Government already knows about the accounts?
Richard E. Timbie: Yes.
John Paul Stevens: Yeah. Okay.
Richard E. Timbie: Excuse me, Your Honor. May I clarify that answer?
John Paul Stevens: Yes.
Richard E. Timbie: The Government knows about eleven accounts. It has told the court below that it knows of a twelfth account that is not in John Doe's name, but that it believes was controlled by Doe and used in connection with these illegal activities, and that one of the purposes of this consent procedure is to obtain the records of that account, assuming that they are, in fact, controlled by Doe. The Government also wants records of any accounts of which it knows nothing that would fall within the scope of the consent.
William H. Rehnquist: What if the Government... let's say nothing is as esoteric as this situation, it's a murder investigation, the Government issues a subpoena to a prospective indictee, subpoena all the guns in your possession, now can he defend against that on the grounds that producing guns might incriminate him?
Richard E. Timbie: The answer to your question lies not in... I don't think lies in the issue before the Court today, but in the extent to which the Court would extend Fisher and how the court views the act of production rational, I could argue that if the Government didn't know to a certainty that he possessed any guns, and the fact that he possessed any gun would be incriminating under the circumstances, that Fisher should be extended to that.
William H. Rehnquist: But Fisher didn't hold that there was any significance to the act of production. It was debated in Fisher, but it wasn't decided.
Richard E. Timbie: Excuse me. It was in Doe that it was--
William H. Rehnquist: And Doe devoted about one paragraph to it.
Richard E. Timbie: --My reading of Doe... I'm not sure I understand the point that you're making.
William H. Rehnquist: Well, my question is that the idea you're pumping for may not be as well established as you think it is.
Richard E. Timbie: We don't feel that it's established by Fisher and Doe. We simply don't feel it's been taken away by Fisher and Doe. We--
William H. Rehnquist: Prior to Fisher, where did it exist?
Richard E. Timbie: --It existed in the so-called physical evidence cases in which, beginning with the Holt case back in 1910, Justice Holmes announced a boundary to the Fifth Amendment in terms of a requirement that the Government not compel a witness or an accused to provide any form of testimony or conduct that would be testimonial or communicative, and, in fact, Justice Holmes' word was "communicative conduct" as opposed to a demonstration of physical characteristics, and subsequent cases, like Schmerber and Dionisio, Gilbert and Wade, have all applied that line and, in fact, have described protected conduct as conduct that is testimonial or communicative in any way.
Antonin Scalia: Don't you think they mean communicative to the fact-finder at the trial and not communicative to anyone in the world? If I may pursue Justice Stevens' hypothetical, you think that the difference between this case and the key case, where you say he can... the Government can compel the production of the key to the safe deposit box, assuming they give immunity for the fact of the production of the key, right?
Richard E. Timbie: Right.
Antonin Scalia: But you would say that even if they gave immunity, they could not require him to tell the guard it's all right to let these investigators in to get into my safe deposit box. If he has a private guard who will only let people in with his consent, he can give the key but he can't tell the guard, let these people in. That's the line you're drawing here.
Richard E. Timbie: The line I'm drawing--
Antonin Scalia: Because that's communicative.
Richard E. Timbie: --is that he cannot be made to speak such that the Government would use the content of his speech to obtain incriminating evidence unless that compelled speech is, in fact, immunized. That is the line, and--
Antonin Scalia: You think that's a reasonable line between giving the key and telling the guard, let these people in?
Richard E. Timbie: --The key hypothetical is an extraordinary one. I should think that the genuine analogy in this case would be to sign a directive instructing anyone, if they have custody of the key that will allow access to incriminating evidence, to turn it over to the U.S. Attorney and if the Government feels that it could use that document somehow to cause a third party to release the key to--
Antonin Scalia: No, not to use at trial. Not to use at a trial anyway.
Richard E. Timbie: --Well, no, not to use at a trial, but if there's a potential for using it at trial, obviously that's an independent basis for finding Fifth Amendment violations. If I may, there has not been a case, and we don't contend there's been a case, in which this Court has directly addressed a communication that was not testimonial in the sense that the Government asserts. We acknowledge that. On the other side, there has never been a case in which this Court has drawn the line that the Government suggests and that line has somehow been relative to the holding. That is, there is no case in which this Court has allowed a compelled communication on the ground that it did not communicate facts about an offense or disclose information that might lead directly or indirectly--
John Paul Stevens: Well, may I ask another question then? Supposing the Grand Jury subpoenaed somebody and asked them to provide them with a handwriting sample of the person's signature, which I guess they can do if they are just trying to compare it with the pre-existing signature, but are you saying that they could not take that signature and go to other parties and say, have you ever seen a signature like this one?
Richard E. Timbie: --Oh, absolutely. There's no question they could do that. The reason they could do that is set forth in Gilbert. The reason they could do that is that it is the physical characteristics of the signature and not the content of the words that they're after. Therefore, there's no Fifth Amendment issue. They can use it against him in any way they choose.
John Paul Stevens: Not only... they could use it to gather evidence that might incriminate him. That's what I'm saying. Take that signature around and ask people, have you seen--
Richard E. Timbie: That's what Gilbert... that's what Schmerber says, certainly. Schmerber says that although the logic of the underlying principles of the Fifth Amendment would suggest that you can't even compel assistance from a defendant in the form of turning over physical evidence, this Court declines to extend the Fifth Amendment beyond testimony or communication, and, therefore, in Gilbert, the Court said the handwriting exemplar could be compelled specifically because it was not the content, it was not any form of testimony or communication out of the defendant's mouth that was the purpose or use of the exemplar. And, in fact, I would certainly argue that if, in the guise of taking a handwriting exemplar, the Government were to make Joe write out a document, write these words, I consent to disclosure of my foreign bank records, and they were then to take that handwriting exemplar to the bank and attempt to pass it off as a consent, I would certainly argue that it would be a communication.
Sandra Day O'Connor: --Mr. Timbie, what actual potential use of the form do you say is testimonial here?
Richard E. Timbie: There are two uses and, in fact, there are principal and alternative arguments in the case. The first use is taking the form to the bank and presenting it to the bank as a communication of Doe's consent and an assurance from Doe that he won't revoke that consent and won't later argue that it was invalidly granted.
Sandra Day O'Connor: Well, why isn't that much like taking blood or getting the handwriting sample?
Richard E. Timbie: In the words of Schmerber, blood and handwriting samples are sought for their physical characteristics, not for any compelled communication they might entail, whereas that is sought for a compelled communication, and I recognize that there's no direct authority that can be cited that would cause the Court to choose between the Government's line and our line, but I would--
Sandra Day O'Connor: Direct authority meaning physical evidence in a sense?
Richard E. Timbie: --Surely.
Antonin Scalia: Mr. Timbie, in the absence of any direct authority, maybe we're compelled to fall back upon the language of the Fifth Amendment. That's a drastic step. Yes. I hate to suggest it, but the... it does not read that no one shall be compelled to communicate in such fashion as to harm his case. It says no one shall be compelled to be a witness against himself. Now, how is this action here causing this individual to be a witness against himself?
Richard E. Timbie: Justice Scalia, I would submit, respectfully, that if this Court were to fall back on the language of the Fifth Amendment, it would have to overrule a great deal of precedent in addition to not following--
Antonin Scalia: Why is that?
Richard E. Timbie: --Because the language of the Fifth Amendment suggests that what we're concerned about here is compelled confessions, and the reason... the initial reason that compelled-confessions were considered inappropriate was that they're untrustworthy and unseemingly.
Antonin Scalia: But it's easy to extend it to any testimonial utterance by the defendant that can be used against him at trial. That can be used for its truth against him at trial.
Richard E. Timbie: Well, and then the Court has then gone on to say that under Kastigar, the Fifth Amendment would require that in addition, any leads that came out of the testimony would have to be protected and any evidence derived directly or indirectly from it. Perhaps I could come at your question from the other direction.
Antonin Scalia: Once you establish the violation, there are all sorts of fruits of the tree that also fall out. Why isn't it enough to say the violation has to be some testimony, some assertion of a fact or the truth that he makes which is used at trial against him?
Richard E. Timbie: I can't argue that there is a compelling logical reason why the line has to be drawn where we suggest. I would like, if I may, to come at the answer to your argument from the other direction and suggest some types of compelled communication that would apparently be allowable under the Government's rule that I feel would not be within the spirit of the Fifth Amendment and certainly would not be within the traditional scope of the Fifth Amendment as it has been applied over the last hundreds of years. Let me take, if I may, the Government's own rational for why, in their words, the document Doe is being asked to sign is a non-assertive document and, therefore, the Government would divide the universe of communications, of course, into assertive communications that continue to be protected and so-called non-assertive communications that aren't protected, and the rational for putting this consent directive in the non-assertive title under the Government's view, there are three of them offered. One is that it is an imperative statement issued to a third party and should be simply treated as a verbal act. Now, the corollary it seems to me of that rational is that any imperative statement is outside the Fifth Amendment, so long as the Government is not using it as an admission of fact. Does that mean that in a bank robbery investigation, the Government could get a court order that the first suspect arrested call up or write to an alleged accomplice and tell him, bring the loot to the corner of Fifth and Main, we'll go some place and divide it up and then wait and see what happens? I would contend that that is not faithful to the command of the Fifth Amendment or the policy of the Fifth Amendment, that the Government will shoulder the entire load in an investigation and not--
Sandra Day O'Connor: Well, Mr. Timbie, don't you suppose the due process clause addresses some of your concerns about other potential uses to which the Government's logic might lead?
Richard E. Timbie: --There may well be an overlap between due process--
Sandra Day O'Connor: Yeah. There may be some protection there, and I would appreciate it if you'd answer my question.
Richard E. Timbie: --Pardon me, ma'am. I'm sorry.
Sandra Day O'Connor: I wanted to know what testimonial use of the consent form you're relying on here.
Richard E. Timbie: I am very sorry.
Sandra Day O'Connor: Well, you were interrupted. It's not your fault, but I would like to know. You said--
Richard E. Timbie: I said, in our view, the mere presentation of the document to the bank is a testimonial use because it's a use of content. In the alternative, if the Government... if the Court adopts the Government's view that this is... that there is a difference between assertive and non-assertive communications then I think it would still be a testimonial use and it is the use identified in Ranauro which, in the First Circuit's decision in Ranauro, which held this procedure to be unconstitutional, Ranauro presented a hypothetical that framed the issue in which a consent directive was signed and presented to a foreign bank and the bank produced records of an account that wasn't in the name of the person who signed the consent directive, and it seems clear that under those circumstances, the statement in the consent, I authorize disclosure of records of accounts over which I have the right of withdrawal, becomes testimonial evidence that he has the right of withdrawal, and it would be evidence that could be used in a criminal trial against him unless he were given immunity from the act of signing the document.
Anthony M. Kennedy: --Well, I assume the Government could take care of that by simply redrafting the order.
Richard E. Timbie: I am not sure how that would be possible.
Anthony M. Kennedy: Well, we could play around with the words, I suppose, but it would say without acknowledging that I have control, you are authorized to release any accounts over which I do have control.
Richard E. Timbie: No. I believe the document was redrafted once in order to do exactly what you're suggesting. That is, make it at the time it is signed not an acknowledgement of control of ready accounts, but what the Ranauro court said is that no matter how hypothetically it's drafted and vaguely it's drafted, the process server who went to the bank could then get on the stand,... the Brown decision in the Second Circuit says that you can authenticate and get admission of records by putting on the process server who served the subpoena and say this is what I asked for and here's what I got, and that's authentication. In this case, the process server could say or the Government attorney or an agent who delivered the consent could say, I went to the bank and demanded the records, they said no because the customer has to consent. I went to the bank with Doe's consent, this is what they gave me. I'm not sure that would be adequate to authenticate the records, but it would be some evidence of a link between Doe and those accounts, and the Government explicitly refuses or at least does not deny that that document would be usable in a trial for that purpose. Their argument at the end of their brief on the last page simply--
Anthony M. Kennedy: Well, we can argue about that.
Richard E. Timbie: --says it wouldn't have probative value.
Anthony M. Kennedy: It seems to me that that's the act of the bank. Let me ask you just one other question. You've argued the case so far in order to show that there's a testimonial component to this statement. Does your case rise or fall on that? If we were to rule that there is no testimonial component, does your case necessarily fail?
Richard E. Timbie: That is--
Anthony M. Kennedy: That's another way of asking whether or not the Fifth Amendment has another ingredient and that is that the accused simply can't be asked to do too much to make the case against him.
Richard E. Timbie: --I would have to say that in our view, the traditional Fifth Amendment rule is that too much and communication are the same thing, that the Court has said too much in terms of production of physical evidence, giving blood samples, being forced to speak in your own voice in a line-up and repeat what was said, that's a lot. But the bright line the Court has drawn in case after case is, between physical evidence, acts that have no communicative content, and communication, and I think that in my view, too much and that line are the same thing. Having already given the hypothetical... excuse me. I only ended up giving one of the explanations that the Government uses to show that this is a non-assertive two others that suggest two other categories of communications that it would view as unprotected. One is the Government argues in its brief that this is a non-assertive communication because the Government put the words in Doe's mouth, and the Court ordered him to say it, and, therefore, it wouldn't be right to treat them as words of Doe or as communications from Doe. Now, the Government is clearly trying to have it both ways there. It wants to take this document to the bank and say to the bank, this is Doe's consent, only he can give it, there's his signature. On the other hand, it comes to this Court and says, you should treat it as an act devoid of content because we told him what to say. If the Government's right there, then presumably unimmunized witnesses could be made to cooperate in an investigation so long as the Government told them what to say. For example, if you imagine a complex conspiracy investigation in which, as is often true, the prosecutor knows what went on and knows who the players were, but can't because it doesn't have a cooperating witnesses establish these conspiratorial links that are necessary for the conspiracy indictment, it would theoretically under the Government's view be proper to have a court order an unimmunized alleged coconspirator to call up other parties and make statements calculated to cause t other parties to incriminate themselves and if that were to work, then the incriminating statements might equally well incriminate the person doing the calling out of his own mouth.
John Paul Stevens: I'm not sure the Government... that it would be all right to do that. I think they would argue that that order might not itself violate the Fifth Amendment.
Richard E. Timbie: That's correct, and then they would order that the defendants in the ultimate indictment would have to come up with some trickery rational to preclude it. My point is that it seems to me that is making him convict himself out of his own mouth and if it's a question of what is too much, that that should be too much.
Antonin Scalia: It seems to me that, too, Mr. Timbie, but are you sure it's the Fifth Amendment that makes it bad? I don't think the Government could ask John Doe out on the street to do that either.
Richard E. Timbie: You're suggesting there's a jurisdiction problem?
Antonin Scalia: I am saying there's some limit to what the Government can do to enlist anybody in its investigations. I don't think the reason it can't do it is necessarily that this person is under indictment. I don't think you could ask anybody to go and assist... compel anybody to assist this investigation in that fashion.
Richard E. Timbie: If you're suggesting that there would be a jurisdiction problem in a District Court issuing such an order, I would agree and we made that argument below and the Fifth Circuit ruled there was jurisdiction for this prosecutor or John Doe to assist the Government in its investigation in that way, even though the controversy was between the banks and the Government. If you're suggesting that setting aside jurisdiction, there's some per se rule why that is improper, I don't know what the rule is. I think in order to police that kind of conduct, you need a Fifth Amendment rule that encompasses all communications.
Harry A. Blackmun: Mr. Timbie, do you have any comment on the amicus brief that was filed by Rex Lee?
Richard E. Timbie: My only comment is, as I said earlier in the argument, the issue... there's a sham quality to what's going on here, and I think that that is pointed out in the amicus brief. The Cayman Islands have ruled, the high court of the Cayman Islands has ruled that a compelled consent is not a consent for purposes of its law. So, what the Government is trying to obtain is on its face an invalid document, and the Government has said we want to use that document nonetheless in a U.S. court in the balancing test in hopes that it will be thrown on our side of the scale, notwithstanding its patent invalidity in the Cayman Islands. I don't think the issue of it is a valid document is determinative of the Fifth Amendment question in this case, and I believe what the Cayman Islands were saying is that that's an issue that ought not be addressed in this proceeding because it hasn't been framed in the record below. I'd like to reserve the balance of my time for rebuttal.
William H. Rehnquist: Thank you, Mr. Timbie. We'll hear now from you, Mr. Rothfeld.
Charles A. Rothfeld: Thank you, Mr. Chief Justice, and may it please the Court: I think it's helpful at the outset to make clear exactly what is not controverted in this case. Both sides agree that the bank records sought by the Government are not themselves privileged under the Fifth Amendment. Both sides agree that the banks that hold the documents can't assert the Fifth Amendment in declining to turn them over. Both sides agree that the Petitioner has no Fifth Amendment right to keep the banks from disclosing the documents. Both sides agree the Government has to find the banks where Petitioner has his accounts through its own investigation and once the Government does find those accounts, both sides agree that the only thing that will keep the banks from surrendering the account records are foreign bank secrecy bank laws that have no force in the United States. I think Mr. Timbie acknowledged all these points in his argument. Nonetheless, Petitioner insists that the Fifth Amendment somehow gives him a constitutional right to continue to enjoy the protection of the foreign bank secrecy laws, even though the act of waiving that protection, the consent form itself, concededly does not give the Government any information that will advance its investigation.
Antonin Scalia: It really doesn't waive the protection as was just pointed out. I mean, and even if the amicus brief had not been filed, it's obviously the simplest thing in the world for any foreign country who has these bank laws and, indeed, it would be idiotic if they didn't, once this case is decided the way you want it decided, for them to simply say, moreover, compelled consent is not sufficient. That will be in the bank contract and then you can do these proceedings forever and it will never get you the information you want.
Charles A. Rothfeld: Well, let me say several things in response to that, Justice Scalia. Idiotic or not, the fact does have some effect. It is true that a court in the Cayman Islands has concluded that as a matter of Cayman laws, these consent forms are in effect if that decision was not appealed. So, Cayman law, I think, is not settled. But there are other jurisdictions that have, even assuming that that settles Cayman law for all time, there are other jurisdictions that have bank secrecy provisions either by statute or by common law, including Bermuda and the United Kingdom, Bermuda is involved in this case, and my understanding is although there are no reported cases from those jurisdictions, in fact, banks in those jurisdictions comply with these compel consents because they interpret their common law bank secrecy protections as having an exception for when compel consent forms of this kind are used. So, I think that they are useful and, of course, there are a great many other jurisdictions that have widely varying kinds of bank secrecy laws. So, this is not a sham proceeding, and I should say, in addition, to the extent that a consent form won't be useful for us, that's our problem. That is not a solution to the Petitioner's case here. It doesn't have any bearing on the Fifth Amendment question of whether it can be compelled to execute the consent, which we can then try to use in a foreign jurisdiction. So, I think it is extremely useful proceeding. I should add one additional practical point. To the extent that Mr. Timbie suggested that we can simply obtain these records easily enough by serving subpoenas on the domestic branches of foreign banks, that's not entirely true because those banks can contests subpoenas and argue that under comity principles, they should not be required to surrender the records, and I'm sure that the banks, and Mr. Timbie if he were in a position to do so, would argue that they should not surrender those records. So far as banks that don't have branches in the United States are concerned, in which you must attempt to obtain records by going to foreign nations, under comity principles, foreign courts are often reluctant to help other countries enforce their revenue laws. So, these consent forms may be the only way for us to obtain this information.
Sandra Day O'Connor: Mr. Rothfeld, do you take the position that the Government can introduce into evidence for any purpose whatever the consent form?
Charles A. Rothfeld: Let me answer that question in two parts, Justice O'Connor. We think, first of all, if the Government--
Sandra Day O'Connor: Against the person signing it?
Charles A. Rothfeld: --We think that if the Government were to do so, it would not present any Fifth Amendment problem, and I'll explain that later on. My short answer to your question is we do not think that this would be admissible. We think, as we explained in our briefs, that--
Sandra Day O'Connor: You take the position that it could not--
Charles A. Rothfeld: --Not for Fifth Amendment reasons. We think that it doesn't have any significant evidentiary value.
Sandra Day O'Connor: --But the Fifth Amendment doesn't prohibit introduction--
Charles A. Rothfeld: That's right.
Sandra Day O'Connor: --in your view?
Charles A. Rothfeld: That's correct.
Sandra Day O'Connor: Even for authentication?
Charles A. Rothfeld: Well, as I suggest, we don't think it would happen, but, no, we do not think the Fifth Amendment would prohibit if someone could possibly imagine a situation in which the bank consent form were introduced, and I think that that comes clear from the nature of the Fifth Amendment guarantee that the Petitioner is trying to call upon here. We think the Court has already settled the principles that control this case and has settled them against the Petitioner. The Court has made it very clear, we think, that, and I'll return to your question and address it in detail when I set out the background which I think provides the answer to your question, but the Court has made it quite clear that the Fifth Amendment can be asserted only when the Government tries to compel someone to do something that is incriminating and testimonial, and we think the Court has made equally clear time and again that something is testimonial only as that word suggests, it has the nature of testimony. That is, when it tells the Government something about the crime. The only question in this case is whether the consent form, that is at issue here, and requiring the Petitioner to put his signature on a consent form, requires him to, perform a testimonial act within the meaning of this Court's decisions, and we think that it quite clearly does not. There should not be any controversy about the meaning of the word testimony in the Fifth Amendment setting. The Court, in its opinion in Fisher, we think, made it quite clear that something is testimonial when it involves, in the Court's words, "truth telling" by the witness, by the suspect, and the Court has made it quite clear, made it quite clear the kinds of things that are not testimony.
Sandra Day O'Connor: But if the consent form were to be offered to establish that these are the records, the bank records, belonging to the Defendant, I find it hard to understand why that wouldn't be testimonial.
Charles A. Rothfeld: Well, if a bank produces records in response to a subpoena accompanied by a consent form, the bank may be making an implicit statement that it thinks the records, as Justice Kennedy suggested, that it thinks the records belong to the suspect. But the suspect himself isn't making any statement and he has no right to keep the bank silent. The suspect in that case is--
Sandra Day O'Connor: But if the Government introduces the consent form, then perhaps it is the suspect who is making the statement.
Charles A. Rothfeld: --Well, I don't think so, Justice O'Connor. The Court has made quite clear the kinds of things that are not testimonial. Something is not testimonial simply because it makes the suspect the source of incriminating evidence. That was the holding in Schmerber, where a suspect was required to provide incriminating blood samples. The Court has made quite clear that something is not testimonial, a witness' act is not testimonial, but simply because it may lead to the production of incriminating evidence by the third party, that was the holding in Holt and in Wade, where suspects were required to put on clothing worn by the perpetrator of the crime to facilitate witness identification.
Sandra Day O'Connor: Do you have to resort then to saying this is a verbal act to say it isn't testimonial?
Charles A. Rothfeld: We don't think we have to resort to it. We think it is quite clear that it is a verbal act. We certainly acknowledge... if the consent form set out information, if it said I have accounts in the Bank of Nova Scotia in account number XYZ, and I'm telling you this, and you can now take this information and go get my records, certainly that would be testimonial. It would be telling the Government something and providing information. The consent form doesn't do that.
John Paul Stevens: Supposing that instead of getting a court order, you'd lock him up for long enough to persuade... the police had locked him up long enough to persuade him to sign this document, didn't beat him up, but used a course of tactics to get him to sign it, would that violate the Fifth Amendment?
Charles A. Rothfeld: Well, I don't think it would violate the Fifth Amendment, Justice Stevens.
John Paul Stevens: Could they do it?
Charles A. Rothfeld: Probably not.
John Paul Stevens: Why not?
Charles A. Rothfeld: I think that one of the problems--
John Paul Stevens: Why couldn't they do it?
Charles A. Rothfeld: --Well, I would thank that there would be potentially due process problems. I'm not sure precisely.
Anthony M. Kennedy: I didn't hear your answer. You think there are?
Charles A. Rothfeld: I think there may be due process problems in locking someone up until they--
Antonin Scalia: Well, it's done all the time.
Charles A. Rothfeld: --If the Government were to take someone without any court process whatsoever and simply throw them in jail for months on end until they did sign it.
Anthony M. Kennedy: No. Justice Stevens is correct, it seems to me, in what he suggests because this is done all the time. If it's a valid court order, it can be enforced. If it's invalid, it can't be.
Charles A. Rothfeld: That's--
Anthony M. Kennedy: You're saying it's valid, So, we can enforce it.
Charles A. Rothfeld: --That's quite right. Maybe I misunderstood Justice Stevens' question. My... let me take a step back. Petitioner has offered this parade of horribles of the various things the Government might do if it prevails in this case, and I think that those are really red herrings. They're not horribles. The only issue in this case is what the Fifth Amendment prevents the Government from doing, and that's the only question presented in the petition.
Sandra Day O'Connor: Well, what would prevent the Government from doing the parade of horribles suggested?
Charles A. Rothfeld: Well, there are a variety of things. One horrible that they suggest that the Government might compel people to consent to searches of their homes. Well, obviously, the Fourth Amendment would prevent that. One horrible they suggest is the Government might compel people to direct their attorneys to disclose confidential communications. Well, the attorney-client privilege, which is recognized by American law, unlike the bank secrecy privilege, would prevent the Government from doing that. Various other things might be prevented by the due process clause, and even apart from that, the Government, before it compels someone to do something or, more particularly, the District Court, before it compels somebody to do something on pain of contempt which is what's going on here, must have jurisdiction and authority to do it. Must have a grant of jurisdiction from somewhere. The lower courts in this case held correctly that the All Writs Act provides jurisdiction for the entry of due order here, but there are limits to the extent to which the statutes like the All Writs Act can provide jurisdiction.
Anthony M. Kennedy: Let me ask you this question, counsel, and then I hesitate to introduce a new hypothetical, but suppose in the routine criminal misdemeanor case involving a traffic offense, where the ownership of the vehicle is clearly established and admitted, and the defendant's custody of the key is admitted, the court says that tomorrow, on the second day of the trial, you drive your car down here so we can inspect it, is that permissible?
Charles A. Rothfeld: I would think so. I mean,--
Anthony M. Kennedy: Have you ever heard of an order such as that?
Charles A. Rothfeld: --Well, I think this is harking back to the Justice Stevens safe deposit box hypothetical, and I think that if the possession of the material, the evidence, whatever, in the suspect's hands is a foregone conclusion in the words of Fisher, requiring the suspect to perform the act of it is not incriminating. I think that a better... to introduce yet another hypothetical, a better--
Anthony M. Kennedy: Just stick with so far as the one I gave you. You see nothing wrong with that and you want us to write an opinion to say that that is correct procedure? That there's no constitutional privilege?
Charles A. Rothfeld: --It may be that I'm not understanding.
Anthony M. Kennedy: And we're assuming that there's no issue of his ownership, there's no issue of his possession of the key.
Charles A. Rothfeld: Our position is compelling someone to produce something when there is leaving aside of the testimonial aspects attendant upon the act of production. There is no Fifth Amendment problem. And to the extent that Petitioner had in his possession a bit of evidence and it was conceded that the evidence was in his possession, he was not disputing... he was not saying there will be any testimonial component to his turning over to the Government, there is no Fifth Amendment privilege because the Fifth Amendment, the Court has said time and again, can be asserted only when the suspect is compelled to do something which has a testimonial and the quite clear that the simple fact that the suspect is required to manufacture incriminating evidence does not by itself make it testimonial. That was the holding in Gilbert and in Wade and in Dionisio. Suspects were required to produce incriminating--
Anthony M. Kennedy: Would you acknowledge that orders such as the one I have hypothesized are not routine and, in fact, are almost unknown in our jurisprudence in the United States?
Charles A. Rothfeld: --Orders requiring the accused to produce--
Anthony M. Kennedy: Orders requiring the accused to produce evidence over which he has control where his control and ownership is not disputed.
Charles A. Rothfeld: --Well, I think typically there are disputes as to whether or not the act of production will lead to courts drawing... will have any testimonial component that is incriminating. I think that people typically don't stipulate that they have possession of stolen property and that may be an explanation as to why this sort of thing typically doesn't happen. Now, I should take a step back from that hypothetical, if I can, and say that this case doesn't present any problems such as that because there is no testimonial component to what the Petitioner is being asked to do, concede or otherwise. He is not being asked to turn over anything in his possession. He is simply being asked to sign a piece of paper which may or may not have a legal effect in the Cayman Islands and Bermuda and will allow banks to turn over documents in their possession permitting the banks to make their implicit statements that they believe these records to belong to the Petitioner.
Sandra Day O'Connor: Well, Mr. Rothfeld, if there is no testimonial component and you're satisfied that the Government would not offer it for any testimonial purpose, why not give limited use immunity to protect against any testimonial component that might be thought to be present?
Charles A. Rothfeld: Well, I am not sure that I can give you a compelling answer to that, Justice O'Connor. I think that our view has been that this is simply not the testimonial sort of thing which is going to appear in evidence. Therefore, the issue of whether or not immunity has to be provided against use of the consent form in evidence, whether or not that should be granted. I think that there may be concerns of granting immunity and if that is imagined to be a concession that there is a testimonial component may lead to fruits arguments when records are produced. We think that there is no necessity for the grant of immunity because there is no testimonial component. There is no Fifth Amendment--
John Paul Stevens: On that point, let me be sure I understand your position. Supposing instead of the document he was asked to sign, there was a document that said To Whom It May Concern, if there are any bank accounts controlled by Mr. Doe under your control, please reveal the contents to them, you don't claim that would be permissible or do you? I mean, here you know in advance which accounts... I guess there's a twelfth account, but assume you really weren't sure, you wanted a kind of broad document like that and then you take it around to all the different banks in the Cayman Islands until you found the right one? Could you do that?
Charles A. Rothfeld: --Well, we have to... in any investigation of this sort, we have to have some idea of where those records are. We have to serve the banks with subpoenas which lead to the production.
John Paul Stevens: Well, what about my hypothetical?
Charles A. Rothfeld: Well, if we just simply had a general idea--
John Paul Stevens: You know he has a bank account in the Cayman Islands and there are fourteen banks there, so you ask him to sign a general consent that would be given authority to go in any one of the fourteen.
Charles A. Rothfeld: --Well, I don't think that would be a Fifth Amendment problem in that. Again, whether or not the court would have jurisdiction to enter that order--
John Paul Stevens: Well, his execution of that document would certainly lead to the discovery of evidence he couldn't otherwise get.
Charles A. Rothfeld: --That's true, but I don't think... t court has made quite clear that is not the problem under the Fifth Amendment. It--
Antonin Scalia: Tell us what it's a problem with because I'm troubled with some of these hypotheticals, too. I'm troubled with Justice Kennedy's hypothetical. You wouldn't feel any better about Justice Kennedy's hypothetical if you got... if you granted him immunity before you told him drive the car down to the courthouse, would you? It would still give you trouble. So, it seems to me there's something wrong with it, but it may not be the Fifth Amendment. Do you have any idea what makes us feel bad about it?
Charles A. Rothfeld: --Well, I'm not sure why you feel bad about it, Justice Scalia. I think that there are a variety of protections in the law against either arbitrary use of the court's power to compel people to do things or against government intrusion. The Fourth Amendment provides protections. The due process clause provides protection.
John Paul Stevens: Yes, but the objection that the man would make in Justice Kennedy's example, you go get the car yourself, I don't have to make... you cannot compel me to help try your lawsuit.
Charles A. Rothfeld: Well,--
John Paul Stevens: That's basically what he's saying, I don't want to drive it down for you. I don't want to produce my car.
Charles A. Rothfeld: --Well, again,--
John Paul Stevens: That's a Fifth Amendment kind of argument.
Charles A. Rothfeld: --Well, I don't think so, Justice Stevens. The other... and let me give you two answers to that. The one immediate answer is the other limitation on government power and the power of the District Court to compel people to do things is that there must be a grant of authority somewhere. Clearly, here, to effectuate a properly-issued subpoena, the court under the All Writs Act, we think, effectuated the enforcement of the subpoena by requiring this compulsion, this signing of the compelled consent. But that is not necessarily going to be the case where the District Court simply says I want you to do something, suspect, that will assist the Government.
Antonin Scalia: Could a court compel his aunt to drive his car down? Can his aunt have the car?
Charles A. Rothfeld: Well--
Antonin Scalia: Issue an order compelling his aunt to drive the car. His aunt isn't under indictment or anything. Do you think that that would be--
Charles A. Rothfeld: --Well, all--
Antonin Scalia: --You don't have to admit it's bad. Would you feel funny about it if it was his aunt or aunt, however you say it?
Charles A. Rothfeld: --Whether or not I would feel funny about it, Justice Scalia, I don't think provides the answer to the Fifth Amendment question in this case. Now, in answering Justice Kennedy, all I meant to suggest is there is no Fifth Amendment--
Thurgood Marshall: The real testimony, all you want is for the bank to testify that the Petitioner has blank dollars on deposit.
Charles A. Rothfeld: --All we want is for the bank to give us something, Justice.
Thurgood Marshall: Is that testimony?
Charles A. Rothfeld: If--
Thurgood Marshall: That is testimony.
Charles A. Rothfeld: --That is testimony, but that is the bank's testimony.
Thurgood Marshall: Sir?
Charles A. Rothfeld: It is the bank's testimony, if anyone's.
Thurgood Marshall: But it is testimony. That is what you want.
Charles A. Rothfeld: Well, whether or not the bank records--
Thurgood Marshall: Tell me the difference in effectiveness before a jury as to whether the bank says it or he says it.
Charles A. Rothfeld: --Well, there is a profound difference in the Fifth Amendment. The Fifth Amendment only--
Thurgood Marshall: Would the jury have any trouble if it was the bank's statement and not his?
Charles A. Rothfeld: --Well,--
Thurgood Marshall: Would you have any trouble as the prosecutor?
Charles A. Rothfeld: --The Court has made clear, Justice Marshall, that the crucial point is whether or not the witness is compelled to do something that is testimonial in nature. If the bank produces these records and the bank makes its statement that these are the records that belong to the Petitioner, that is the bank statement and we are free to use it. The fact that the Petitioner has done something that allows us to obtain the evidence, and I think this answers questions that were posed by Justice Scalia and Justice Kennedy and Justice Stevens, that does not raise a Fifth Amendment problem. It is quite clear in a case where the suspect provides a handwriting exemplar or voice exemplar. The suspect is required to do something that would lead other parties to produce very incriminating evidence. The suspect provides a handwriting exemplar and the Government obtains handwriting experts who develop complex analyses and produce evidence and testify themselves. The suspect has been required to do something that facilitates the Government's case, that allows the Government to produce incriminating evidence from third parties, but that not raise the Fifth Amendment problem. The Court made that clear eighty years ago in Holt and has repeatedly reaffirmed that principle. It is only when the suspect is required to do something himself that is testimonial that Justice Scalia pointed out in some sense makes him a witness against himself. A witness does not take the stand and as Petitioner has been ordered to do in this case, ask a third party to produce evidence. A witness takes the stand and testifies. He tells a story. He explains what happened, and the suspect here is not being required to do anything like that. Now, to return very briefly to the hypothetical, I'm not sure which number hypothetical it is, but one of the hypotheticals offered by Justice Stevens or Justice Scalia, if the aunt is ordered to drive a car in, that may offend us but that is not a Fifth Amendment problem. Whether or not the Court's power under the All Writs Act, even assuming it had the power to compel the suspect to drive the car, extends to the aunt may be a difficult question, but it's not presented here. The only issue raised by the Petitioner is the Fifth Amendment.
John Paul Stevens: On the aunt question, I'm not sure it would offend. If she had custody of the vehicle and you subpoenaed the vehicle and ordered her to produce it, I don't know why that would offend me. Maybe if she has to hire somebody else to do the driving, but I think she'd have to bring it into court.
Charles A. Rothfeld: Well, I think that involves a meeting of the All Writs Act or other jurisdictional provisions that I don't want to get into. It may turn on whether or not the Government had other means of effectuating the subpoena. But that is not a question here. The question here is the Fifth Amendment problem, and Petitioner has not offered any reason to believe that what he is required to do here implicates the language, the policies of the Fifth Amendment or any decision of this Court. Now, the Court, as I said before, has made very clear that it's only when there is a testimonial component to the compelled action, compelled statement, that there's a Fifth Amendment problem.
Anthony M. Kennedy: We have also said that the Fifth Amendment stands for the fact that we have an accusatorial system and not an inquisitorial system, but you think that's all dictum and there must be a testimonial component to the Act.
Charles A. Rothfeld: Well, I don't think... I wouldn't characterize it as dictum. I think that that is the rational for the line the Court has drawn in requiring testimonial component. The Court has taken the view that when a suspect is required to speak his guilt and disclose the contents of his mind to the Government, that becomes an inquisitorial type of proceeding.
John Paul Stevens: Yes, but you know, it's a very interesting question. I'm not sure we've focused on it very often. Say the police beat some prisoner up and force him to give a confession, then they never produce it into evidence, they just put it in the file somewhere, have they violated the Fifth Amendment or haven't they? No testimonial use. They made him talk against himself.
Charles A. Rothfeld: Well, offhand, I'm not aware of any authority directly addressing that question, Justice Stevens. Unfortunately, that is certainly not anything close to the issue in this case. I mean, there is no doubt in the case, in your hypothetical, the witness has been... the suspect has been compelled to say something testimonial, to disclose what he knows about the crime, to make factual assertions that are true or false. That is not true here.
Antonin Scalia: Mr. Rothfeld, are you asserting on behalf of the Government the power to get this individual to do because he's a defendant anything that you couldn't get the private individual to do who is not a defendant? That is, to put it in the context of this case, could you have made... could you have gotten a similar order directed against someone who is not a defendant in the case? Suppose the bank accounts were held in the name of a third party, totally innocent third party, who is not implicated in the conspiracy at all, could you have gotten this order against that third party?
Charles A. Rothfeld: Well, once again, I have to fall back on the proposition that that is not a question that's presented in this case because we think that in that situation, there would not be a Fifth Amendment problem.
Antonin Scalia: I want some limitation upon what you can do to this defendant.
Charles A. Rothfeld: Excuse me, Justice Marshall.
Thurgood Marshall: Isn't one of these accounts in this case in another party's name?
Charles A. Rothfeld: They may be in the names of other parties, but we believe that they are controlled by the Petitioner and that's an important point. I think to answer your question, Justice--
Antonin Scalia: You don't understand the point of my question. I'm looking for some limitation on what we can get, what we can allow you to do to a defendant. If all you're coming in and saying, we can ask this defendant to produce anything we can ask anyone else to produce, so long as it is not testimonial, that's one position. If what you're arguing on the other hand is some broader proposition, we can ask defendants to do things that we couldn't ask non-defendants to do, that's something quite different. Now, which of the two is your position here?
Charles A. Rothfeld: --It is the first. We are not saying that his status as a target of... he's not a defendant, he's a target of the Grand Jury, puts him in any different position so far as the Fifth Amendment is concerned. We think the limitation on... the Fifth Amendment limitation on what we can do is the same in either case, whether or not someone is compelled to incriminate themselves. Now, there are distinctions in the All Writs Act, for example, in grants of authority to the courts, as to the relationship between the person who is being compelled to produce something at the proceeding. The court in the New York Telephone case talks about whether or not that makes any difference. So, it may be, Justice Scalia, that there are things that the District Courts have authority to do.
Antonin Scalia: You have gotten this order issued to someone who is not a defendant, yes or no, do you think?
Charles A. Rothfeld: I'm not sure that I can answer that question, Justice Scalia, because that involves the meaning, I think, of the All Writs Act, which grants the Court jurisdiction to enter orders of this sort, which simply has not been addressed by the parties to this point. I would think that it would be a closer question under that statute than the case in which--
Antonin Scalia: Can't you get an order for a landlady to open the door that has property belonging to the defendant, and if this much different from that, getting someone who controls the bank account to issue, if you think that there are illegal funds in the account?
Charles A. Rothfeld: --In Fifth Amendment terms, I don't think that there is any distinction between... I understand the problem you are having, Justice Scalia, is that we concede there are all sorts of limitations on what the Government can do that are found elsewhere in the Constitution, elsewhere in the statutes and by negative implications, the lack of authority granted to the District Courts to compel people to do things, and it may be that in all of the hypotheticals that are presented by the Court, the Government won't be able to do it because it has no authority to do it or because some other constitutional provision keeps us from doing it.
Antonin Scalia: I am not inclined to say that you can do more to this defendant than you can do to an innocent third party by reason of the fact that he's a defendant. Maybe you can do less, but I'm certainly not going to say that you can make him do it if you can't make his aunt do it. Yes, but your problem is... I didn't catch this before, but the jurisdictional foundation of this order is the All Writs Act, isn't it?
Charles A. Rothfeld: That was--
John Paul Stevens: And that's really a little different than it might be if it were a state case. The state court might have general jurisdiction to do this sort of thing, whether it's a defendant or not. But a federal court has to find a jurisdictional basis and the jurisdictional foundation here is the All Writs Act.
Charles A. Rothfeld: --That was the foundation.
John Paul Stevens: And that's not before us.
Charles A. Rothfeld: That is not presented in this case.
John Paul Stevens: It may mean that the federal court has less authority in this area than the state court of general jurisdiction.
Charles A. Rothfeld: That may well be the case, Justice Stevens. So far... once again, to return to the question that concerns Justice Scalia, so far as the Fifth Amendment is concerned, it creates a general bar, a limited but general bar on what the Government can do to people and compel them to do, whether or not they are defendants or targets or whatever. So far as grants of authority to the District Court can exercise jurisdiction over people, there may or may not be distinctions granted in the jurisdictional statute, but that is not the question here. The Petitioner has chosen to present only one question and that is the Fifth Amendment question, and as I said before, he offers no reason to believe that the Fifth Amendment prohibits the Government from doing what it did in this case. All he says is this is a communication and, therefore, it must be testimonial, but that is clearly not true. The Court has used the word "communication" in its opinions as a synonym for factual assertion for communication of evidence to the Government. The Court's actual language in Schmerber, which Petitioner relies upon, is that the Fifth Amendment only prohibits accused when compelled to testify against himself or provide evidence of a testimonial or communicative nature. Petitioner has not provided any evidence of any sort to the Government. He has simply authorized other people to provide evidence. He is in no different situation than a suspect who is linked to a handwriting... to a ransom note in the Government's possession by a handwriting exemplar that he was forced to produce and that was then analyzed by a Government expert. He allowed for the production of evidence by other people, but the Court has said that does not create an inquisitorial system. Inquisitorial is when the suspect is required to disclose the contents of his own mind. Petitioner has suggested that this form does somehow disclose his own mind because it reveals that he actually consents to the release of his documents. That is simply not the case. The form says on its face that it was entered pursuant to a court order. It doesn't say anything about whether Petitioner actually wants his banks to release his bank records. Once again, in that situation, in that sense, the Petitioner is in no different situation than a suspect or defendant who is required to write out a ransom note to produce a handwriting exemplar for the Government. The suspect simply has not done anything that is testimonial, and the Court has said again and again that having a testimonial component is the essence of the sort of thing that is prohibited by the Fifth Amendment. The Government obtains bank records, uses them against the Petitioner, it will not relieve its burden of establishing its own case because he has spoken his guilt in some sense because he hasn't said anything about his guilt or about what went on in this case. It would not be a situation in the language by the Court thirty years ago in its Ullmann decision in which the accused was convicted because of disclosures from his own mouth. He hasn't made any disclosures. All he has done is permit the Government to obtain evidence from a third party and to return to Justice Stevens'... one of the many hypotheticals Justice Stevens' safe deposit hypothetical, it's simply a situation similar to the one that would be presented if a suspect required not to lock his safe deposit box, so that people could get into it. This is simply permitting the Government to obtain evidence that can be used against him at trial. The evidence that will be provided by third parties. Now, there's nothing in the language, certainly in the purposes of the Fifth Amendment, or in any of this Court's decision as Petitioner concedes that requires the Court to rule for him in this case. The Court of Appeals recognized that and we think this Court should affirm its decision. If there are no further questions, thank you.
William H. Rehnquist: Thank you, Mr. Rothfeld. Mr. Timbie, you have two minutes remaining.
Richard E. Timbie: Thank you, Mr. Chief Justice. Mr. Rothfeld took issue with our waiver of the attorney-client privilege hypothetical, saying that, of course, the attorney-client privilege is self-policing because any lawyer in his right mind isn't going to accept the compelled consent directive as a valid waiver. But the Government offers a broader rational here, even in the waiver area. What it is saying there is that it can force an unwilling, unimmunized witness to sign any waiver that would merely be... would allow it to overcome a non-constitutional impediment to access the third party records. There are other statutory privileges that this procedure could be used for that would not give rise to self-policing mechanisms through--
William H. Rehnquist: Immunity wouldn't be any... you wouldn't say if the Government were to compel him to consent to a waiver of his attorney-client privilege, that would be all right if he were immunized? I mean, that is bad, but for a reason quite apart from the Fifth Amendment.
Richard E. Timbie: --I wholeheartedly agree, but what the Government is saying in this case is that you shouldn't look at this through a Fifth Amendment lens because it will be policed elsewhere. What we're saying is the Government shouldn't be able to give it a try by forcing you to sign that document. Think of, for example, a state evidentiary privilege. The accountant-client privilege. Spousal privilege, for example. It may well be the Government could get a consent directive, get a spouse or accountant to go into a Grand Jury and talk to the police, never introduce the testimony in evidence, so there would never be a suppression hearing, but use the fruits. We contend that the only way to police that is with the Fifth Amendment, not with some Fourth Amendment notion. Getting back to Justice O'Connor's question, she asked the Government whether they felt they could use this document in evidence, and the Government said yes. No Fifth Amendment problem, and we don't... but we wouldn't try. We state that that is constructive use immunity which is not allowed in this Court.
William H. Rehnquist: Thank you, Mr. Timbie. The case is submitted.