1. What was Braswell’s legal theory for his refusal to hand over the documents to the government?

2. What if Braswell’s company was a sole proprietorship rather than a corporation? What if he ran it alone out of his apartment? When should the Fifth Amendment start or stop protecting him?

3. If a corporation has been recognized as a legal “person” for First Amendment purposes, shouldn’t the Fifth Amendment protect it too?

Braswell was the sole share-holder and officer in two companies engaged in brokering (buying and selling) timber, land, oil interests, and machinery. The only other directors in the companies were his wife and his mother. Federal authorities that were investigating Braswell’s business subpoenaed his business records. Braswell refused to hand over the documents, claiming that he was asserting his Fifth Amendment right against self-incrimination. Braswell argued that when a business is so small that it is nothing more than a person’s “alter ego,” the Fifth Amendment safe-guards should apply.

The U.S. Supreme Court ruled against Braswell and compelled him to hand over the books and records. The Court held that a corporation can act only through its officers and employees and when an officer or employee acts as a records custodian for that company, then he is not entitled to Fifth Amendment protection because he is no longer acting as a pri-vate individual but as part of a corporation. The Fifth Amendment protects only private individuals.

“Artificial entities such as corporations may act only through their agents, and a custodian’s assumption of his representative capacity leads to certain obligations, including the duty to produce corporate records on proper demand by the Government. Under those circumstances, the custodian’s act of production is not deemed a personal act, but rather an act of the corporation. Any claim of Fifth Amendment privilege asserted by the agent would be tantamount to a claim of privilege by the corporation—which of course possesses no such privilege.”