McAlister v. Henkel

Background

This case arose from a government complaint under the Sherman Act against the American Tobacco Company and the Imperial Tobacco Company. A subpoena sought three specific agreements, including dates, parties, and a suggested content description, and one agreement was certified by the U.S. Consul General. McAlister, a secretary and director of the American Tobacco Company, refused to answer questions or produce the documents, asking to be told more about the proceeding and to see a copy of any proposed indictment.

Reasoning

The Court compared this matter to questions considered in Hale v. Henkel and noted two differences: a formal government charge existed here, and the subpoena specified particular writings. The Court explained that the protection against self-incrimination in the Fifth Amendment belongs to the witness personally. A witness cannot refuse to answer by asserting the privilege of another person or of a corporation. The opinion cited earlier authorities showing that an officer cannot invoke a corporation’s privilege to avoid testifying or producing corporate books and records. For those reasons, the Court upheld the lower court’s order.

Real world impact

The decision means company officers cannot block subpoenas simply by invoking a corporation’s rights; courts may require officers to produce specified corporate documents and testify. The ruling was an affirmation of the Circuit Court’s order and follows the Court’s view that the Fifth Amendment privilege is the personal right of each witness.