Does a subpoena requiring a defendant's lawyer to testify before a grand jury constitute a violation of the Fifth Amendment?

The Tornays argue that enforcement of the subpoena violates the Due Process clause of the Fifth Amendment. It is uncertain whether, and if so to what extent, the due process clause expands the constitutional protections of the Sixth Amendment right to counsel. Compare Dillon v. United States, 307 F.2d 445, 446-47 (9th Cir.1962) ("[T]he appointment of counsel may sometimes be mandatory even in those areas in which the Sixth Amendment does not apply.") with In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238, 246 (2d Cir.1985) (en banc) ("[D]ue process clauses neither expand nor contract the constitutional protection provided by the Sixth Amendment right to counsel."), cert. denied, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986). We need not resolve this uncertainty.

The fairness concerns of due process are not implicated here. We have said: "Merely requiring a defendant's lawyer to testify does not alone constitute a material interference with his function as an advocate or operate to deprive the accused of a fair trial." United States v. Freeman, 519 F.2d 67, 68 (9th Cir.1975). Further, merely requiring an attorney to supply unprivileged information for a government investigation does not offend our notions of fundamental fairness and justice. See also In re January 1976 Grand Jury, 534 F.2d 719, 730 (7th Cir.1976). Enforcement does not violate the Tornays' right to due process.

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