Excerpts of Hubbell Decision
Wednesday, July 1, 1998
One of the motions seeks dismissal of the entire case and will be granted: The charges in the indictment neither relate to nor arise out of the subject of the original grant of jurisdiction to the independent counsel, and the referral order under which the independent counsel is proceeding impermissibly expands that jurisdiction.
A second motion, dispositive only as to defendant Webster L. Hubbell, will also be granted: The independent counsel concedes that he built his case against Mr. Hubbell using 13,120 pages of records that Mr. Hubbell was compelled to produce under subpoena. That use violates the immunity given to Mr. Hubbell by the United States District Court for the Eastern District of Arkansas.
Defendants third and fourth motions are to dismiss the mail and wire fraud charges and to dismiss a single charge of violation of the "omnibus" provision of the criminal tax code. Those motions will be denied.
The Madison-Whitewater matters that were the subject of the original grant (appointment of Independent Counsel Kenneth Starr) and the tax matters that are the subject of this case have nothing in common -- nothing, at least, that appears on this record -- except Webster Hubbell. The independent counsel has made no serious effort to show the "overlap" found to exist in the Espy I referral. He has identified no common witnesses, described no similar patterns of conduct, cited no similar applicable law. Nor has the independent counsel offered any real resistance to defendants submission that this case involves "violations of other criminal statutes outlawing a different category of conduct and occurring on different occasions than those set forth in the (original grant) of jurisdiction." ... The independent counsel's explanation of how this indictment is "connected with" the original grant was a recitation spanning six degrees of relationship. ... I find the asserted connection too attenuated and conclude that neither the tax referral order nor the indictment is "connected with" or "demonstrably related to" the original grant.
Had the independent counsel applied for a referral from the attorney general under section 594(e), as he did in Tucker, supra, or asked the attorney general to petition the special division to expand his jurisdiction under Section 593(c), as he did in the investigation of the matters involving Monica Lewinsky ... he might have received proper authority -- or at least unreviewable authority -- to prosecute these charges. As it is, however, the indictment must be dismissed.
On November 1, 1996, after the independent counsel had successfully prosecuted Webster Hubbell under the billings referral, and while Mr. Hubbell was still in prison, the independent counsel served him with a subpoena commanding the production of all his business, financial, and tax records from January 1, 1993 to the date of the subpoena. Mr. Hubbell refused to comply, invoking his Fifth Amendment privilege against self-incrimination. The independent counsel thereupon moved for, and the United States District Court for the Eastern District of Arkansas granted, an order compelling production of the documents. Pursuant to 18 U.S.C. Section 6002, the order also granted Mr. Hubbell "immunity to the extent allowed by law." ... Mr. Hubbell complied with that order and produced 13,120 pages of documents to the independent counsel. While the original purpose of the subpoena was to investigate allegations of obstruction of justice, the independent counsel brought no obstruction charges. Instead -- and the independent counsel concedes this important point -- he "used the contents of these documents to identify and develop evidence that led to this prosecution."
The subpoena served on Mr. Hubbell was the quintessential fishing expedition. The independent counsel freely admits that he was not investigating tax-related charges when he issued it. ... Instead, he "learned about the unreported income and other crimes from studying the records contents." ... His application for authority to investigate potential tax violations by the Hubbells was not filed with the special division until December 31, 1997, fourteen months after the subpoena had issued.
Mr. Hubbell's compelled production of documents allowed the independent counsel to build a case against Mr. Hubbell different in all material respects from the case for which they had been subpoenaed. Mr. Hubbell was thereby turned into the primary informant against himself.
The motion to dismiss all counts against defendant Webster Hubbell must be granted.
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