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Washington Lawyer

Legal Spectator: Diaries

From Washington Lawyer, November 2003

By Jacob A. Stein

Legal Spectator Bookstores’ offer blank books at moderate prices in attractive colors, with good quality lined paper. These books sell by the millions each year. All of this means to me many people are writing diaries or thinking of doing so.

There is the diary of the great man himself and of those within his inner circle. Winston Churchill’s wartime inner circle were told not to keep a diary. Nevertheless, they did. Lord Alanbrooke, Winston Churchill’s principal military adviser, recorded his day-to-day dealings with Churchill. Alanbrooke and Churchill did not see eye to eye on all things. Here is Alanbrooke’s diary for September 10, 1944:

We had another meeting with Winston at 12 noon. . . . He knows no details, has only got half the picture in his mind, talks absurdities and makes my blood boil to listen to his nonsense. I find it hard to remain civil. And the wonderful thing is that 3/4 of the population of the world imagine that Winston Churchill is one of the Strategists of History, a second Marlborough, and the other 1/4 have no conception what a public menace he is and has been throughout this war!
     There is also the diary of the person with no connection with the world of the great and the important. It is the place to clarify once and for all the few vague principles that drift around the mind and determine who we are and how we deal with what life presents us.

It is a private place for a long talk at day’s end to record the resolutions that will be broken. To record things that appear casual and insignificant, which on further consideration with pen in hand light up connections otherwise unnoticed.

What if you kept a personal diary and you were served with a grand jury subpoena directing you to produce the diary? Would the Fifth Amendment give you the right to refuse to disclose what is written.

The Fifth Amendment protects you from being compelled to be a witness against yourself. It was interpreted in Boyd v. United States, 116 U.S. 616 (1886), to include personal papers if what is in those papers would tend to incriminate. For many years nobody questioned the reasonableness of Boyd.

In the last 35 years the Court has been predisposed to narrow the Fifth Amendment protection. It did so by discovering that the word witness excludes personal papers because a witness is someone speaking, and what you say does not include what you say to yourself in your own personal papers.

There is no scientific test or linear deductive logic that can prove Boyd is wrong and these latter-day interpretations of the meaning of the word witness are right. It’s like a recent president’s statement, that it all depends on what the meaning of the word is is.

To prove the point, I direct your attention to the concurring opinion of Justices Thomas and Scalia in United States v. Hubbell, 530 U.S. 27 (2000). It seems they are nostalgic for the good old Boyd days when privacy was of significance and when the Fifth Amendment protections included personal papers:

The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” The key word at issue in this case is “witness.” The Court’s opinion, relying on prior cases, essentially defines “witness” as a person who provides testimony, and thus restricts the Fifth Amendment’s ban to only those communications “that are ‘testimonial’ in character.” [Citation omitted.] None of this Court’s cases, however, has undertaken an analysis of the meaning of the term at the time of the founding. A review of that period reveals substantial support for the view that the term “witness” meant a person who gives or furnishes evidence, a broader meaning than that which our case law currently ascribes to the term. If this is so, a person who responds to a subpoena duces tecum would be just as much a “witness” as a person who responds to a subpoena ad testificandum.
     Of the many diaries I have read, the one I find most interesting is the diary of H. R. Haldeman, President Richard Nixon’s chief of staff. Here is a sample. It is Haldeman’s June 10, 1971, entry:
P [President Nixon] this morning got into a discussion of how we’re going to have to make a shift, as of now, throughout our entire shop to begin a totally oriented commitment to relating everything we do to the political side, without appearing to do so. This has got to apply to everything. The question to be asked in weighing every answer is, “Does this help us politically?” He says it’s OK to do a few nice things, but damn few.
     The Assassin’s Cloak is an anthology of diary excerpts. The title is taken from the diary of William Soutar: “A diary is an assassin’s cloak which we wear when we stab a comrade in the back with a pen.” This perceptive comment may be the explanation for many of the things we are astonished to find in the diaries of those who wait on those in power.

Jacob A. Stein can be reached by e-mail at jstein@steinmitchell.com.