Why did the N.C. State Board of Elections release the 9th Congressional District witnesses from their subpoenas?
If you watched the N.C. State Board of Elections hearing on the Mark Harris Ninth District fiasco last month, you might have noticed curious introductions to the witnesses’ testimony. That is, each witness was subpoenaed to appear before the Board at the hearing. But before the witnesses actually testified, the Board’s chair, Bob Cordle, released them from testifying and noted that their testimony would be purely voluntary. They were free to leave. As it turned out, only McCrae Dowless took the Chair up on the implicit invitation. He refused to testify. Implausible as it might have seemed, the rest of the witnesses spoke freely.
Why did Cordle go through this exercise? Why did he risk the other witnesses’ making the choice Dowless did and skipping the hearing entirely? Well, he sort of had to.
North Carolina’s Broad Statutory Immunity for Witnesses
North Carolina has a statute that says this:
No person shall be excused from attending or testifying or producing any books, papers or other documents before any court or magistrate upon any investigation, proceeding or trial for the violation of any of the provisions of this Article, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate or degrade him, but such person may be subpoenaed and required to testify by and for the State relative to any offense arising under the provisions of this Article; but such person shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be used against him upon any criminal investigation or proceeding, but such person so compelled to testify with respect to any acts of his own shall be immune from prosecution on account thereof, and shall be pardoned for any violation of law about which such person shall be so required to testify.
N.C.G.S. § 163A-1391 (soon to be recodified as N.C.G.S. § 163-277) (emphasis added).
That provision applies to North Carolina’s elections, while an almost identical one applies to the Board’s campaign finance investigations. See N.C.G.S. § 163A-1447 (soon to be recodified as N.C.G.S. § 163-278.29).
Anyway, it’s a weird, and broad, provision, one that poses problems for the Board in pursuing investigations. For any subpoena the Board issues to a “person” (the term used in the statute), the Board has to assume that a criminal prosecution could be stymied. This is why at the start of Day 4 of the CD9 hearing, the Board’s general counsel, Josh Lawson, said that the Board had subpoenaed the Mark Harris for Congress Committee and not Harris in his personal capacity. If Harris himself had responded to a subpoena for documents related to the Board’s investigation, that would have been a “matter . . . concerning which” he was “produc[ing] evidence, documentary or otherwise.” And the statute says he could not be “prosecuted or subjected to any penalty” regarding that.
What Other States Do
We can hardly find a similar provision in state election laws around the country. By our count, 38 states do not have statutory provisions in their elections codes that refer to witnesses’ immunity at all or in ways not relevant to this post. A number of states do have statutes that mirror the Fifth Amendment privilege against self-incrimination:
Colorado -- C.R.S.A. § 1-13-103
Florida -- F.S.A. § 104.39
Kentucky -- KRS § 119.345
Michigan -- M.C.L.A. § 168.942
South Dakota -- SDCL § 12-26-31
Tennessee -- T.C.A. § 2-19-137
Virginia -- VA Code Ann. § 24.2-1018
But those statutes relate to testimony and are otherwise unremarkable. Basically, witnesses can be compelled to testify. But if they’re compelled, their testimony can’t be used against them.
New York says its board of elections can grant immunity to a witness if it discusses with the attorney general and D.A. first. McKinney’s Election Law § 3-102. Louisiana says you can’t be granted immunity for providing testimony or information in connection with an elections-related investigation. LSA-R.S. § 18:1511.9. That provision still wouldn’t override the Fifth Amendment.
Massachusetts may be the only other state that immunizes a witness for producing documents. Its statute says:
No person shall be excused from testifying or producing any papers in any inquest proceedings under sections thirty-five to forty, inclusive, on the ground that his testimony may tend to criminate him or subject him to a penalty or forfeiture, but he shall not be prosecuted or be subjected to a penalty or forfeiture for or on account of any action, matter or thing concerning which he may be required so to testify, except for perjury committed in such testimony.
M.G.L.A. 55 § 41.
Hmmmm . . .
The Massachusetts provision is pretty close to North Carolina’s, and elections investigators there must sometimes find themselves in the same box as Cordle did when he was releasing the CD9 witnesses from their subpoenas.
But make no mistake, these two states are outliers. It’s almost like the legislators in these two states don’t want to have vigorous investigations into election fraud and campaign finance irregularities at all. As it stands, elections investigators in North Carolina have to carefully weigh the value of sending a subpoena for documents to a subject who might well be a strong candidate for criminal prosecution. Maybe N.C.’s General Assembly should repeal those statutes or rewrite them to focus on compelled testimony and exclude document production. We realize document production itself can sometimes be “testimonial” and therefore subject to Fifth Amendment protections under United States v. Hubbell, 530 U.S. 27, 43 (2000). But North Carolina’s statutes don’t let the inquiry even get to that stage. These immunity statutes give too much protection to investigation subjects who don’t necessarily deserve it.