Taking the Fifth to Avoid Perjury: Ambassador Gordon Sondland

During last week’s impeachment hearings, Ambassador Taylor asserted that an aide overheard a discussion with President Trump regarding his alleged request urging the Ukrainian government to open investigations into the Biden family and any involvement Ukraine may have had in the 2016 Presidential election. The revelation raised new concerns that Ambassador Sondland had potentially exposed himself to perjury charges for misleading Congress in his closed door deposition testimony. Similar concerns already resulted in Ambassador Sondland submitting an addendum to his testimony correcting certain assertions because his review of other witnesses’ testimony refreshed his recollection. The new information casts doubt on Ambassador Sondland’s testimony that President Trump had no personal involvement in the discussions with the Ukrainian government regarding the investigations in question. For example, Ambassador Sondland testified:

Q. Well, you heard that from Rudy Giuliani, that the President wanted Ukraine to announce investigations into 2016 and Burisma, right? We’ve been over this a number of times.

A. I heard that from Rudy Giuliani. I never heard it from the President. I am assuming Rudy Giuliani heard it from the President, but I don’t know that. So I asked the President: What do you want?

However, on Friday, David Holmes, a Foreign Service Officer with the Department of State testified that he overheard a conversation between Ambassador Sondland and President Trump which included the following exchange:

I, then, heard President Trump ask, “he’ s gonna do the investigation?” Ambassador Sondland replied that “he’ s gonna do it,” adding that President Zelenskyy will do “anything you ask him to.”

This discrepancy arguably exposes Ambassador Sondland to potential criminal liability for perjury. Assuming for the sake of argument that this is the case, it raises interesting strategic questions regarding how Ambassador Sondland should approach his upcoming public testimony and any subsequent requests for documents.

Can You Take the Fifth If Testifying Truthfully Exposes You Only to a Perjury Charge?

The short answer to this question is yes. Courts addressing this issue have consistently found that an individual who fears that truthful testimony would expose them to perjury for testimony in a previous proceeding, may also refuse to testify based on the Fifth Amendment. In re Grand Jury Subpoena, 739 F.2d 1354, 1360 (8th Cir. 1984) (“[I]f upon questioning by the grand jury a truthful response would be inconsistent with [the witness’s] trial testimony, … [the witness] would have the right to invoke his Fifth Amendment privilege against self-incrimination.”); Evans v. City of Chicago, 513 F.3d 735, 743 (7th Cir. 2008) (“‘To be privileged by the Fifth Amendment to refuse to answer a question, the answer one would give if one did answer it (and answer it truthfully) must have some tendency to subject the person being asked the question to criminal liability.’”) (citation omitted). Further, those courts that have directly addressed the issue have held that the Fifth Amendment is concerned with perjury arising from past testimony, not present testimony. See, e.g., United States v. Vavages, 151 F.3d 1185, 1192 n. 3 (9th Cir. 1998) (“Fear of a perjury prosecution can typically form a valid basis for invoking the Fifth Amendment only where the risk of prosecution is for perjury in the witness’ past testimony.”); United States v. Partin, 552 F.2d 621, 632 (5th Cir. 1977) (same).

Can You Refuse to Produce Documents Based on Fifth Amendment Protections?

Whether an individual can refuse to comply with a request for documents based on the Fifth Amendment depends on the nature of the production. As courts have repeatedly held, the protection afforded by the Fifth Amendment privilege extends to producing documents where the act of production itself is testimonial in nature. See United States v. Hubbell, 530 U.S. 27, 36 (2000); United States v. Greenfield, 831 F.3d 106, 115 (2d Cir. 2016); United States v. Sweets, 526 F.3d 122, 127 (4th Cir. 2007).

To take our present example, let’s assume that Ambassador Sondland was served a subpoena for documents reflecting communications with the President regarding the Ukrainian investigations. If Ambassador Sondland were to produce documents in response, he would be essentially testifying to the existence of such documents. Therefore, so long as Ambassador Sondland has “reasonable cause to apprehend danger from a direct answer,” he would be entitled to assert his right against self-incrimination and refuse to produce documents. Ohio v. Reiner, 532 U.S. 17, 21 (2001).