Gordon Fox lawyer: Subpoena could aid investigators

House Speaker Gordon Fox speaks to reporters in March. (WPRI 12 photo)

PROVIDENCE, R.I. (WPRI) – Former House Speaker Gordon Fox on Tuesday continued his fight to avoid complying with a subpoena in the state’s 38 Studios lawsuit, arguing through his attorney that providing the information requested could put him in legal jeopardy.

Albin Moser, Fox’s lawyer, cited three recent stories on WPRI.com – about the March 21 raids targeting Fox, a state probe into possible lobbying violations by 38 Studios, and a state police leader confirming his organization’s 38 Studios investigation – to make the case against the subpoena issued by one of the defendants in the suit, Wells Fargo & Co.

“Mr. Fox has a privilege against self-incrimination and a right to an order quashing this subpoena,” Moser wrote in a legal brief filed Tuesday afternoon. “In light of the federal and state raids in March, and the State Police’s declaration that it is investigating 38 Studios, Mr. Fox cannot be compelled to respond to this subpoena.”

In the brief, Moser cited the Fifth Amendment of the U.S. Constitution and the first article of the Rhode Island Constitution to argue that forcing Fox to comply with the Wells Fargo subpoena – which seeks a long list of documents related to 38 Studios – would violate his right to avoid self-incrimination.

Moser wrote that Fox is concerned “such information would possibly be used by authorities as a link in the chain, or prosecutorial lead against him, in what is acknowledged as a current State Police investigation.”

“Given that Mr. Fox has been the subject of a state and federal raid, and 38 Studios is the subject of a current investigation, he has a reasonable belief that any response he would make would be used in the investigation in an effort to incriminate him, affording him the right against self-incrimination to respond,” he continued.

R.I. Superior Court Judge Michael Silverstein ordered Moser to file the more extensive legal document after hearing arguments last Thursday from both sides about whether to quash the subpoena. Thomas Holt, Wells Fargo’s lawyer, has until Thursday to file his response. It’s not clear yet when Silverstein will rule.

The hearing was held as part of the pre-trial process for the Chafee administration’s lawsuit against the architects of the 38 Studios deal, which brought Curt Schilling’s game company to Rhode Island in 2010 in exchange for a $75-million taxpayer-guaranteed loan. The company collapsed in 2012.

R.I. State Police Col. Steven O’Donnell confirmed last week that a state police investigation into 38 Studios is ongoing. U.S. Attorney Peter Neronha said earlier this year on WPRI 12’s Newsmakers that federal investigators were not looking into the deal.

Target 12 has previously reported that investigators were seeking campaign-finance records related to Fox when they raided his home and State House office March 21.

“The document requests in the subpoena seek broad categories of various types of documents concerning 38 Studios and request various types of documents concerning communications with the individuals that are most closely associated with 38 Studios,” Moser wrote Tuesday. “Based on these circumstances … Mr. Fox asserts his privilege against self-incrimination.”

Moser also argued Fox should not be required to provide a privilege log – a list of documents he is withholding for allowable reasons that opposing attorneys can then review – because that could also tip off the authorities about potentially incriminating documents he possesses that they don’t currently know exist.

Fox resigned as House speaker following the raids in March but is still a state lawmaker, representing House District 4 on Providence’s East Side, and has been attending General Assembly sessions. He is not running for re-election in November.

Ted Nesi ( tnesi@wpri.com ) covers politics and the economy for WPRI.com and writes the Nesi’s Notes blog. Follow him on Twitter: @tednesi

Tim White contributed to this report.

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