United States v. Hubbell, Webster L.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 1998 Decided January 26, 1999

No. 98-3080

United States of America,

Appellant

v.

Webster L. Hubbell, Suzanna W. Hubbell,

Michael C. Schaufele and Charles C. Owen

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 98cr00151-01)

Kenneth W. Starr, Independent Counsel, argued the cause

for appellant. With him on the briefs were David G. Barger,

Joseph M. Ditkoff, and Darrell M. Joseph, Associate Indepen-

dent Counsels. Stephen J. Binhak, Associate Independent

Counsel, entered an appearance.

John W. Nields, Jr. argued the cause for appellees Web-

ster L. Hubbell and Suzanna W. Hubbell. K. Chris Todd

argued the cause for appellee Michael C. Schaufele. With

them on the brief were Laura S. Shores, Wan J. Kim and

Drake Mann, counsel for appellee Charles C. Owen.

J. Douglas Wilson, Attorney, U.S. Department of Justice,

argued the cause for amicus curiae United States acting

through the Attorney General.

Before: Wald, Williams and Tatel, Circuit Judges.

Opinion for the Court filed Per Curiam.*

Separate opinion concurring in Part I filed by Circuit

Judge Wald.

Separate opinion dissenting from Part I filed by Circuit

Judge Tatel.

Separate opinion dissenting from Part II filed by Circuit

Judge Williams.

Per Curiam: All defendants--Webster L. and Suzanna W.

Hubbell, Michael C. Schaufele, and Charles C. Owen--moved

in the district court to dismiss an indictment charging tax

evasion and related crimes on the ground that the indictment

was beyond the prosecutorial jurisdiction of Independent

Counsel Kenneth W. Starr. In addition, Webster Hubbell

moved for dismissal on the theory that prosecution necessari-

ly would depend on evidence produced under compulsion and

used in violation of the Fifth Amendment and the immunity

granted him under 18 U.S.C. s 6002. The court granted both

motions. 11 F. Supp. 2d 25 (D.D.C. 1998). We reverse both

decisions and remand for proceedings consistent with this

opinion.

I. Jurisdiction

On August 5, 1994 this court's Special Division for the

Purpose of Appointing Independent Counsels ("Special Divi-

sion"), upon request from the Attorney General, appointed

__________

* Judge Williams wrote Part I; Judge Wald wrote Part II.

Kenneth W. Starr as Independent Counsel. It gave Indepen-

dent Counsel Starr jurisdiction to investigate

whether any individuals or entities have committed a

violation of any federal criminal law, other than a Class B

or C misdemeanor or infraction, relating in any way to

James B. McDougal's, President William Jefferson Clin-

ton's, or Mrs. Hillary Rodham Clinton's relationships

with Madison Guaranty Savings & Loan Association,

Whitewater Development Corporation, or Capital Man-

agement Services, Inc.

as well as

other allegations or evidence of violation of any federal

criminal law, other than a Class B or C misdemeanor or

infraction, by any person or entity developed during the

Independent Counsel's investigation referred to above

and connected with or arising out of that investigation

and, more specifically,

any violation of 28 U.S.C. s 1826, or any obstruction of

the due administration of justice, or any material false

testimony or statement in violation of federal criminal

law, in connection with any investigation of the matters

described above.

The Special Division also gave the Independent Counsel

jurisdiction to seek indictments against and to prosecute

any persons or entities involved in any of the matters

described above, who are reasonably believed to have

committed a violation of any federal criminal law arising

out of such matters, including persons or entities who

have engaged in an unlawful conspiracy or who have

aided or abetted any federal offense.

Finally, apparently summarizing the above grants, the Special

Division ordered that the Independent Counsel have

prosecutorial jurisdiction to fully investigate and prose-

cute the subject matter with respect to which the Attor-

ney General requested the appointment of independent

counsel, as hereinbefore set forth, and all matters and

individuals whose acts may be related to that subject

matter, inclusive of authority to investigate and prose-

cute federal crimes (other than those classified as Class

B or C misdemeanors or infractions) that may arise out

of the above described matter, including perjury, ob-

struction of justice, destruction of evidence, and intimi-

dation of witnesses.

These grants of authority were under 28 U.S.C.

s 593(b)(1), a provision of the Ethics in Government Act,

which calls on the Special Division, on application of the

Attorney General, to "appoint an appropriate independent

counsel and ... define that independent counsel's prosecuto-

rial jurisdiction." Besides that authority--and authority to

expand an independent counsel's jurisdiction on application of

the Attorney General, see id.; see also id. at s 592(c)(2)

(directing Attorney General to follow same procedure as to

new information)--the Act authorizes an independent counsel

to ask the Special Division to "refer" to him "matters related

to the independent counsel's prosecutorial jurisdiction." 28

U.S.C. s 594(e). As a result of such a request, the Special

Division on September 1, 1994 made a referral of matters

concerning Webster L. Hubbell's billing and expense prac-

tices while a member of the Rose Law Firm. Hubbell pled

guilty to two felony counts concerning these matters in

October of that year; in the plea agreement Hubbell prom-

ised to cooperate "by providing full, complete, accurate and

truthful information" to the Independent Counsel about Madi-

son, Whitewater, and Capital Management (hereinafter collec-

tively "Whitewater").

The Independent Counsel discovered in 1996 that Hubbell

apparently had begun to receive substantial payments as

consulting fees in 1994. According to the present indictment,

these payments included $100,000 from Hong Kong China

Limited (controlled by the Riady family through the Lippo

Group) and $62,775 from Revlon.1 Not satisfied that Hubbell

__________

1 The relationship between these entities and potential targets of

the Whitewater investigation should now be familiar. The Riady

family knew and supported President Clinton from the 1980s, and

had been fully cooperating, the Independent Counsel sought,

as he says in his brief, "to determine whether a relationship

existed between those payments and Mr. Hubbell's testimony

with respect to Whitewater and Madison-related matters."

After the investigation had progressed considerably, the

Independent Counsel sought another s 594(e) referral from

the Special Division. It granted the referral on January 6,

1998, encompassing prosecutorial jurisdiction over:

(i) whether Webster L. Hubbell or any individual or

entity violated any criminal law, including but not limited

to criminal tax violations and mail and wire fraud, re-

garding Mr. Hubbell's income since January 1, 1994, and

his tax and other debts to the United States, the State of

Arkansas, the District of Columbia, the Rose Law Firm,

and others; and

(ii) whether Webster L. Hubbell or any individual or

entity violated any criminal law, including but not limited

to obstruction of justice, perjury, false statements, and

mail and wire fraud, related to payments that Mr. Hub-

bell has received from various individuals and entities

since January 1, 1994.

A federal grand jury indicted Hubbell and the other defen-

dants on April 30, 1998. The indictment alleged conspiracy,

mail and wire fraud, and various tax offenses, all concerning

attempts to keep Hubbell's income--including, in material

part, the consulting fees--from creditors and the IRS.

On July 1, 1998 the district court granted defendants'

motion to dismiss the indictment in its entirety as beyond the

authority of the Independent Counsel. 11 F. Supp. 2d at 27.

__________

contributed large sums to the Democratic National Committee in

the 1990s. See generally House Gov't Reform and Oversight

Comm., 105th Cong., Campaign Finance Investigation Interim Re-

port Chapter 4, Part A (1998). Secret Service records indicate that

James Riady had made several visits to the White House in the

days before the payment to Hubbell was made. See id. at 14 n.94.

As for Revlon, it later accommodated another potential witness in a

different litigation involving possible targets of the Whitewater

investigation by offering her a job.

* * *

The threshold issue before us is the effect, if any, of the

Special Division's January 6, 1998 referral order ("the refer-

ral"). The Independent Counsel argues that the referral is

either unreviewable or is entitled to deference from this

court; defendants--and the Department of Justice in its

amicus brief--argue that it is irrelevant. No one suggests

that the indictment is beyond the scope of the referral.

Referrals from the Special Division are authorized by 28

U.S.C. s 594(e), which provides: "An independent counsel

may ask the Attorney General or the division of the court to

refer to the independent counsel matters related to the

independent counsel's prosecutorial jurisdiction, and the At-

torney General or the division of the court, as the case may

be, may refer such matters." The Supreme Court said in

Morrison v. Olson, 487 U.S. 654 (1988), that "this provision

does not empower the court to expand the original scope of

the counsel's jurisdiction ... [but] simply to refer matters

that are 'relate[d] to the independent counsel's prosecutorial

jurisdiction' as already defined." Id. at 680 n.18.

The referral here, then, is simply an explicit determination

by the Special Division that the original grant of jurisdiction

implicitly included the matters referred. See In re Espy, 80

F.3d 501, 507 (D.C. Cir. 1996); see also Morrison, 487 U.S. at

685 n.22. The Independent Counsel argues for unreviewabili-

ty of this determination by analogy to what he regards as

comparable decisions of the Attorney General. For such

unreviewable counterparts he points first to the decisions of

the Attorney General and her subordinates to have "Main

Justice" prosecute certain cases rather than a local U.S.

Attorney's Office and second to the Attorney General's own

referral authority under s 594(e). In United States v. Tuck-

er, 78 F.3d 1313 (8th Cir. 1996), the Eighth Circuit found the

latter unreviewable, relying in part on the analogy to the

Main Justice/U.S. Attorney allocation.

At least as applied to the Special Division, however, the

analogy does not hold. Although the Supreme Court upheld

the independent counsel provisions of the Ethics in Govern-

ment Act against constitutional challenge in Morrison v.

Olson, the Court, in rejecting the attack on the statute's

grant of powers to the Special Division, saw it as important to

say that the s 594(e) power did not empower the Division to

expand the original grant of jurisdiction. 487 U.S. at 680

n.18. If the constitutional balance between the branches

requires this constricted reading of s 594(e), it would be

startling (though not inconceivable) to find that Article III

courts are powerless to enforce the boundary. No such

issues are at stake in the parceling out of jurisdiction between

Main Justice and the various U.S. Attorneys' offices. And

Tucker itself poses somewhat different issues, as there the

executive branch--the one most jeopardized by the indepen-

dent counsel provisions--is the one exercising the s 594(e)

power. In Tucker, moreover, the Eighth Circuit also relied

upon particular legislative history indicating that Congress

intended the Attorney General's s 594(e) referrals to be

unreviewable, see 78 F.3d at 1317-18, history not paralleled

as to s 594(e) referrals by the Special Division. We there-

fore find nothing that overcomes the general presumption of

reviewability.

But the independent counsel alternatively asks for defer-

ence to the Special Division's s 594(e) referral. We initially

observe that it is not clear in what constitutional capacity the

Special Division acts in making a referral. The Independent

Counsel and the Department of Justice as amicus see refer-

rals as some sort of agency action; defendants, like the

district court, appear to leave open the possibility that the

proper analogy is to various other ancillary functions per-

formed by the judiciary--authorizing search warrants, for

example.2 11 F. Supp. 2d at 30-31. Both analogies seem

fairly (though not entirely) apt--as one might expect for a

constitutional hybrid--but they lead us to the same result:

substantial deference.

__________

2 Although an argument that the Special Division's interpretation

of the original grant's legal language is judicial action and presump-

tively unreviewable as law of the case could be at least facially

plausible, see, e.g., Espy, 80 F.3d at 507, no party has taken such a

position here.

Viewed as an agency, the Special Division appears to act

quite like one glossing its own regulation--a situation in

which we usually grant substantial deference. See Paralyzed

Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 584

(D.C. Cir. 1997) (deference to agency interpreting its own

regulations at least equal to deference under Chevron). De-

fendants and the Department of Justice as amicus would have

us reject deference on the ground that the Division operates

without procedures for critique and comment by outsiders,

especially by adversely affected parties. But the cases fre-

quently find deference in such safeguard-deprived circum-

stances. See, e.g., Stinson v. United States, 508 U.S. 36

(1993) (commentary to sentencing guidelines); Consolidation

Coal Co. v. Federal Mine Safety and Health Review Comm'n,

136 F.3d 819 (D.C. Cir. 1998) (interpretation implicit in

Commission's decision to bring enforcement action); Nation-

al Wildlife Fed'n v. Browner, 127 F.3d 1126, 1129 (D.C. Cir.

1997) (litigating position, as long as it is agency's actual and

deliberated-upon view); Paralyzed Veterans, 117 F.3d at 581-

82 (supplement to DOJ's ADA Title III Technical Assistance

Manual).

The Department of Justice goes on to characterize its chief,

the Attorney General, as the entity actually responsible for

the initial grant; from that assumption it reasons that Con-

gress likely intended no deference for the Special Division's

interpretations of the initial s 593 grant (which is all that

s 594(e) referrals are). See Martin v. Occupational Safety

and Health Review Comm'n, 499 U.S. 144, 158 (1991) (Con-

gress may divide various powers as it wishes, subject to

broader constitutional limitations). But the fact that the

Attorney General initiates the appointment process and

makes an initial suggestion of jurisdiction cannot be a basis

for withholding deference to the Special Division: in the end,

the order appointing the Independent Counsel and setting out

his jurisdiction is articulated and issued by the Special Divi-

sion as its own action. See 28 U.S.C. s 593(b)(1); Paralyzed

Veterans, 117 F.3d at 585 (identity of actual regulation-

drafter irrelevant once regulation is "put out by [the latter

agency] as its own"). We therefore presume that the Special

Division's interpretations receive deference, see Martin, 499

U.S. at 151 ("[W]e presume that the power authoritatively to

interpret its own regulations is a component of the agency's

delegated lawmaking powers."), and we find no intent to

overcome that presumption.

Morrison, it is true, requires that "the jurisdiction that the

[Special Division] decides upon must be demonstrably related

to the factual circumstances that gave rise to the Attorney

General's investigation and request for the appointment of

the independent counsel in the particular case." 487 U.S. at

679. This sets out the constitutional boundary for the Special

Division's initial action. Even if we assume its extension to

the Division's later s 594(e) interpretation of that grant,

nothing helpful to the Department's or defendants' position

would follow. It would be a curious revival of the discredited

doctrines of "constitutional fact" and "jurisdictional fact" to

infer from the constitutionality of the boundary that an

Article III court (as such) must draw it de novo. See John

Dickinson, "Crowell v. Benson: Judicial Review of Adminis-

trative Determinations of Questions of 'Constitutional Fact,' "

80 U. Pa. L. Rev. 1055, 1072-75, 1077-79 (1932) (explaining

logical errors in doctrine now generally regarded as mori-

bund);3 see also Oklahoma Natural Gas Co. v. FERC, 28

F.3d 1281, 1283-84 (D.C. Cir. 1994) (Chevron deference appli-

cable even to questions of agency jurisdiction and preemption

of state power). There is no claim by defendants, moreover,

that if the disputed referral is within the original grant, it

__________

3 In Dickinson's analysis the key error is to suppose, of a fact that

is said to be a necessary basis of jurisdiction or of constitutionality,

(1) that it may be known absolutely and (2) that only judicial

apprehension of the fact can constitute that knowledge. See id. at

1074. Indeed, as almost any issue could be characterized as a

jurisdictional or constitutional one, this sort of reasoning would

swallow deference whole. See id. at 1077-79; see also Mississippi

Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 381

(1988) (Scalia, J., concurring) ("To exceed authorized application is

to exceed authority. Virtually any administrative action can be

characterized as either the one or the other, depending upon how

generally one wishes to describe the 'authority.' ").

would follow that the original grant was ipso facto outside the

zone within which it was required to fall, i.e., "demonstrably

related" to the Attorney General's request.

Defendants stress additional language in Morrison that,

they claim, characterizes the referral power of the Special

Division as "essentially ministerial." 487 U.S. at 681. This

simply misreads the case--the language specifically refers to

the provisions listed in its footnote 19: referral is not among

them.

The existence of alternative referring agencies, the Attor-

ney General and the Special Division, presents further defer-

ence problems. Compare, e.g., Rapaport v. OTS, 59 F.3d

212, 216-17 (D.C. Cir. 1995) (no deference in Chevron context

if more than one agency given authority) with id. at 220-22

(Rogers, J., concurring in the judgment) (case-by-case deter-

mination of deference in such situations). Is a referral by the

Attorney General also entitled to deference? We have seen

that she would not be interpreting her own grant of jurisdic-

tion--the key issue under Martin--but we do not rule out

other possible grounds for deference or even unreviewability.

See, e.g., Tucker, 78 F.3d at 1317-19 (legislative history

indicates that referrals from Attorney General are not re-

viewable). Indeed, as Morrison's concern about the Special

Division's power is far less applicable to a s 594(e) reference

by the Attorney General (who would be voluntarily ceding her

own power), her power here may not be limited to interpret-

ing the original grant; any review of her referral would then

be in an entirely different context. As either entity may act

under s 594(e) only at the initiative of the Independent

Counsel,4 the possibility of conflicting interpretations is one

__________

4 The statute also says that the Attorney General may refer a

matter "on the Attorney General's own initiative," but then provides

that the Independent Counsel "may accept such referral if the

matter relates to the independent counsel's prosecutorial jurisdic-

tion," 28 U.S.C. s 594(e), so that in this context the independent

that the Independent Counsel can freely prevent. Further, a

grant by one authority and denial by the other need not

necessarily constitute a conflict: the phrase "may refer"

appears to include some discretion to decline referral even

where the authority agrees with the proposed interpretation

of the initial jurisdictional grant. Indeed, this apparent dis-

cretion suggests the possibility--on which we express no

opinion--that Congress intended only a grant of referral to

be authoritative.

Finally, the claim of zero deference would if accepted

render s 594(e)'s provision for referral by the Special Divi-

sion meaningless. We do not believe Congress enacted this

statutory procedure simply to relieve the solitude of the

Independent Counsel's office.

The search warrant analogy--brought to mind by the

defendants' and the Department's stress on the absence of

adversary procedures--is also instructive. Although made ex

parte and resolving constitutional questions, a determination

of probable cause by a federal magistrate or state judge is

given "great deference." Illinois v. Gates, 462 U.S. 213, 236

(1983) (internal quotation omitted). And in this context it is

quite plain that neither the allocation of the power to an array

of entities nor the possibility of denial by one judge before a

grant by another stands in the way of deference to any

particular warrant actually granted.

Both analyses lead us to deference, but employ different

linguistic formulations. An agency's interpretation of its own

regulation is upheld unless "plainly erroneous or inconsistent"

with the regulation, Bowles v. Seminole Rock & Sand Co., 325

U.S. 410, 414 (1945), while a search warrant is valid if the

magistrate had a "substantial basis" for his finding of con-

formity to the applicable standard (probable cause). Gates,

462 U.S. at 238. Such formulations do not necessarily con-

__________

counsel himself can unilaterally moot the relatedness issue by

deciding not to proceed.

We note further that the Attorney General has taken no action

under s 594(e) in this case. The Independent Counsel did not ask

her for a referral of the contested matters until October 9 of this

year--well after the Special Division had already granted its refer-

ral--and she has not yet acted.

flict: each appears to assume a paradigm case rather differ-

ent from the Special Division's s 594(e) referral.

Although deference to an agency's interpretation of its

regulations applies where it is simply applying the regulation

to a specific set of facts, see, e.g., Consolidation Coal Co., 136

F.3d at 820-21, the deference is plainly focused on the

agency's norm-defining role.

It makes sense to view the referral power thus, at least in

part. Unlike a magistrate issuing a warrant, for example, the

Special Division is not interpreting a single concept with an

elaborate precedential pedigree and fairly well-established

outline: even key terms (such as "related to") are, as terms of

art go, still novel and quite ambiguous. Further, just it is far

easier for an agency to develop and maintain a coherent

interpretive line if its legal interpretations enjoy deference

from the scattered multitude of judges who review its deci-

sions, see Peter L. Strauss, "One Hundred Fifty Cases Per

Year," 87 Colum. L. Rev. 1093 (1987) (arguing that this value

supports the principle of Chevron deference to agency inter-

pretation of statutes), so deference may enable the Special

Division to do so, as the thousands of magistrates and state

judges who issue warrants obviously cannot.

On the other hand, to the extent these recurring concepts

are fleshed out, the grant of referral also entails some of the

marshaling and application of facts (or factual assertions) that

"substantial basis" seems to assume and "plainly incorrect or

inconsistent" may overlook. In fact, this element and the

norm-defining element discussed above appear inextricably

entwined in the Special Division's referral decision.

We could perhaps attempt to articulate some multiheaded

standard to govern review of the referral. But this would be

a futile exercise of judicial ingenuity. As Judge Posner has

noted, there is deference and non-deference, but further

multiplication of flavors "reflects the lawyer's exaggerated

faith in the Word." United States v. McKinney, 919 F.2d

405, 422 (7th Cir. 1990) (Posner, J., concurring); see also

NLRB v. Universal Camera Corp., 179 F.2d 749, 753 (2d Cir.

1950) (L. Hand, C.J.), vacated, 340 U.S. 474 (1951). That is to

say, we believe that a s 594(e) referral from the Special

Division falls into the "deference" category. The common

thread of deference formulations being reasonableness, see

McKinney, 919 F.2d at 423,5 we believe that the Special

Division's decision to refer must be upheld if reasonable and

rejected if not.

* * *

The statute sets a minimum on the scope of the jurisdiction

the Special Division is to grant. We do not think the Special

Division's referral is unreasonable even if compared to this

minimum. Indeed, we find the indictments themselves within

the statutory minimum jurisdiction even without deference to

the referral.

The statute begins by directing the Special Division to

"assure that the independent counsel has adequate authority

to fully investigate and prosecute the subject matter with

respect to which the Attorney General has requested the

appointment of the independent counsel, and all matters

related to that subject matter." 28 U.S.C. s 593(b)(3) (em-

phasis added). As we shall see, there is an ambiguity in the

definition of that core "subject matter," but, under the sen-

tence as a whole, the Independent Counsel may prosecute

anything "related to" it.

The statute continues:

Such jurisdiction shall also include the authority to inves-

tigate and prosecute Federal crimes ... that may arise

out of the investigation or prosecution of the matter with

respect to which the Attorney General's request was

__________

5 More specifically, we have said that "we very much doubt that

we would defer to an unreasonable agency interpretation of an

ambiguous regulation." Paralyzed Veterans, 117 F.3d at 584 (em-

phasis in original). Further, although "substantial basis" has not

received much specific elaboration, the Supreme Court also formu-

lated the test as "substantial evidence," Massachusetts v. Upton,

466 U.S. 727, 728 (1984), which of course simply refers us to the

position of a "reasonable factfinder," Allentown Mack Sales and

Service v. NLRB, 118 S. Ct. 818, 828 (1998).

made, including perjury, obstruction of justice, destruc-

tion of evidence, and intimidation of witnesses.

Id. The Independent Counsel may therefore also prosecute

crimes that "arise out of the investigation or prosecution of"

the core "subject matter."

As we noted, there is an ambiguity in just what the core

jurisdiction is. The Attorney General's initial application to

the Special Division described the subject matter of the

appointment as "whether any violations of federal criminal

law were committed by James B. McDougal or any other

individual or entity relating to Madison Guaranty Savings &

Loan Association, Whitewater Development Corporation, or

Capital Management Services, Inc." Application for the Ap-

pointment of Independent Counsel (1994) (emphasis added).

It appears unusual in defining the original "core" as criminal

activity "relating to" the narrowly conceived subject--White-

water.6 One could argue that the "related to" phrases com-

pound: the Independent Counsel would thus be entitled to

investigate and prosecute crimes "related to" any crimes

"relating to" Whitewater (or, under the second statutory

sentence, "aris[ing] out of the investigation" of crimes "relat-

ing to" Whitewater).

We think in fact such piling on adds little. "Relating to"

and "arise out of" are themselves such amorphous phrases as

to make their addition (or multiplication) virtually meaning-

less.

__________

6 Both the former Special Prosecutor's core jurisdiction and the

Attorney General's suggested core jurisdiction for the Independent

Counsel--which the Special Division adopted as the first jurisdic-

tional clause of its original grant--tracked this expansive version of

"subject matter." See Application for the Appointment of Indepen-

dent Counsel, (Suggested) Statement of Jurisdiction of Independent

Counsel ("whether any individuals or entities have committed a

violation of any federal criminal law ... relating in any way to

James B. McDougal's, President William Jefferson Clinton's, or

Mrs. Hillary Rodham Clinton's relationships with" Whitewater)

(emphasis added).

Rather we think the minimum statutory space must be

read, as we have said in the past, in accord with the purposes

of the statute. Its "central purpose ... is to permit the

effective investigation and prosecution of high level govern-

ment and campaign officials." United States v. Wilson, 26

F.3d 142, 148 (D.C. Cir. 1994) (emphasis added). Discussing

the "related to" language of s 593(b)(3), we noted that "the

scope of a special prosecutor's investigatory jurisdiction can

be both wide in perimeter and fuzzy at the borders." Id.

The word "relation" thus comprises more than identical twins.

And just as a person is "related" not only to his parents and

children, but to grandchildren and grandparents,7 the fact

that a crime is in some sense a verbal step or two away from

the core crime cannot render it unrelated.

More concretely, the jurisdiction to look into matters "re-

lated to" the core areas of initial inquiry must allow the

Independent Counsel enough leeway to investigate and prose-

cute such matters as are appropriate for him to effectively

carry out his mandate. We think such effectiveness cannot

be secured unless the Independent Counsel is at least able to

pursue crimes ancillary to the commission or concealment of

crimes in the core area.

The rationale for jurisdiction in this case is the same under

either the "related to" or "arising out of" phrases in the

statute. If payments Hubbell received beginning in 1994

were indeed hush money to secure Hubbell's silence vis--vis

Whitewater, the possible obstruction of justice therein would

certainly be a crime "relating to" Whitewater, for it would be

an attempt to cover up the wrongdoing afterward. Both the

Department of Justice and the defendants admit as much.

They nevertheless argue that the tax charges here, as well as

wire fraud and mail fraud aimed at keeping the income from

the IRS and others who would have resulting claims, are not

like the "arising out of" crimes specified in s 593(b)(3): "per-

jury, obstruction of justice, destruction of evidence, and intim-

idation of witnesses." The latter, argues DOJ, involve "con-

__________

7 We do not, however, express an opinion on the applicability of

this metaphor beyond the second generation.

duct tending to impede the investigation and prosecution of

other crimes." DOJ Amicus Br. at 34. But any criminal

conduct that could hide the hush money or amplify its value

tends to impede investigation and prosecution of the matter

being hushed up. The less disclosure of the payments, the

less chance that they and their nature will come to light; and

the more value Hubbell can squeeze from hush money (by

nonpayment of taxes or the like), the more chance it will

succeed in preventing his cooperation.8

The dissent, disputing these concerns, first argues that the

Riady and Revlon payments were in fact disclosed in Hub-

bell's 1994 tax return. See Dissent at 13. This appears

correct. But it does not seem unreasonable to believe that

the other, unenumerated, "consulting fee" payments--made

that year and after--were of a piece with the specifically

detailed ones.9 Further, the dissent's apparent belief that no

one "could have foreseen" Hubbell's tax evasion scheme,

Dissent at 14, is hard to grasp. Surely Hubbell could have

anticipated the advantages of sheltering any hush money

from the IRS. And at every point where he faced a choice

(presumably continuously), he could weigh the benefits of

remaining silent with those of speaking up. Tax evasion,

both in anticipation and execution, would amplify the expect-

ed benefits of silence and thereby increase the chances that

the underlying truth--if in fact something was hidden--would

remain buried.

Indeed, the history of "aris[ing] out of" indicates a rather

liberal view as to the prosecution of downstream matters.

__________

8 We note that the Independent Counsel, apparently focused on

the particular procedural implications of "arise out of," did not fully

articulate in the district court his theory of the tax violations as

themselves reinforcing the cover-up.

9 We also realize that not all the tax violations may specifically

concern the possible hush money payments--that is, the "consulting

fees." It would be ludicrous, however, if the Independent Counsel,

in bringing a nondisclosure and evasion case materially concerning

such payments, were not able to present the full pattern of nondis-

closure and evasion.

The Watergate Special Prosecutor, acting under jurisdiction

granted by regulation to pursue offenses "arising out of" the

Watergate burglary or "offenses arising out of the 1972

Presidential Election for which the Special Prosecutor deems

it necessary and appropriate to assume responsibility,"10 ob-

tained convictions of H.R. Haldeman, John D. Ehrlichman,

and John N. Mitchell for their actions in attempting to

conceal a cover-up, i.e., to cover-up a cover-up--specifically,

for perjury in making false denials of their efforts to cover up

the Watergate break-in (one such effort being hush money

payments to the burglars and E. Howard Hunt, Jr.). See

United States v. Haldeman, 559 F.2d 31, 59 (D.C. Cir. 1976).

Though the language is different, we find it implausible that

Congress intended to give the Independent Counsel a nar-

rower jurisdiction than was exercised by that office's most

salient model.

The defense, of course, argues that we cannot consider the

hush money hypothesis at all. Unlike Watergate, the prose-

cutor has not yet charged anyone named in this indictment

with the suggested first-level obstruction of justice. Seeming

to regard non-indictment as the equivalent of true and com-

plete exoneration (i.e., better than acquittal, which is consis-

tent with a case from which the jury could have found guilt),

defendants effectively claim that unless the bridge crime is

charged (i.e., the obstruction of justice which is invoked by

the Independent Counsel), and presumably then proven at

__________

10 The mandate, in full, stated that:

The Special Prosecutor shall have full authority for investigat-

ing and prosecuting offenses against the United States arising

out of the unauthorized entry into Democratic National Com-

mittee Headquarters at the Watergate, all offenses arising out

of the 1972 Presidential Election for which the Special Prosecu-

tor deems it necessary and appropriate to assume responsibili-

ty, allegations involving the President, members of the White

House staff, or Presidential appointees, and any other matters

which he consents to have assigned to him by the Attorney

General.

38 Fed. Reg. 30,738-39 (1973).

least in the sense of a case on which reasonable jurors could

find guilt, it must be assumed completely non-existent.

This requires too much. It is true that if the Independent

Counsel had no evidentiary grounds at all for believing that

the payments were obstructive--or, indeed, if the evidence

clearly showed that the payments were not obstructive--he

could not rely on such a jurisdictional theory. But defen-

dants' claim is implausible. The Department of Justice itself

has recognized that prosecution of a pure non-disclosure

crime is suitable when it lacks enough evidence to prosecute.

Its Manual, for example, allows prosecutors to use 18 U.S.C.

s 1001 (prohibiting false statements) to pursue public corrup-

tion crimes when prosecution for the underlying offense "is

not practicable." 9A DOJ Manual at 9-1938.123 (1988); see

also United States v. Blackley, No. 98-3036, slip op. at 9-10

(D.C. Cir. Jan. 26, 1999). It even directs prosecutors to make

their decisions based on the nature (in this case, the gravity)

of this uncharged underlying offense: "It is DOJ policy not to

prosecute ... under section 1001 unless the nondisclosure

conceals significant underlying wrongdoing." 9A DOJ Manu-

al at 9-1938.123 (emphasis in original). Perhaps even more

tellingly, the Internal Revenue Service has established a

substantial "Special Enforcement Program" to investigate

people who "derive substantial income from illegal activities,"

IRS Manual s 4566.1(1), presumably on the assumption that

in the case of many criminals (Al Capone being the most

notorious example) it is easier to indict and convict them for

the nonreporting and concealment of their illegal income than

on the illegality of the income-generating activities. The IRS

Manual goes on to explain that a person may be targeted for

Special Enforcement (and thus for a tax case driven by his

possible involvement in other criminality) if he "is reasonably

believed to be receiving substantial income from an illegal

activity that is separate and apart from the alleged tax

violations." Id. s 4566.1(2)(d). For certain underlying

crimes, the Manual states a laxer standard. For the category

"IRS racketeer," for example, all that is required is that he

be "identified" by a specified high IRS official "as being

engaged in organized criminal activities; notorious or power-

ful with respect to local criminal activities," etc. Id.

s 4566.1(2)(a).

That does not mean, of course, that the Independent Coun-

sel is bound by the specific provisions of various executive

branch manuals. The dissent faults the Independent Counsel

for failure to comply with a provision of the DOJ Manual

requiring IRS approval as a predicate to tax cases. See

Dissent at 18-19. The dissent rests this complaint on

s 594(f)(1), which requires the Independent Counsel to follow

DOJ policy except where "to do so would be inconsistent with

the purposes of this chapter." 28 U.S.C. s 594(f)(1). It

suggests that the court wrongly "assume[s]" such inconsisten-

cy. Dissent at 19. But defendants have never raised a claim

under s 594(f)(1). In the absence of any effort to assert the

section (and thus any opportunity for the Independent Coun-

sel to defend himself), an inference that its exception applies

seems fairly grounded: very little independence would be left

in the office if the Independent Counsel had to run to DOJ or

other executive branch agencies whenever DOJ established

such sign-off procedures.11

Thus, while the Independent Counsel is differently situat-

ed, other agencies' views on the links between crimes provide

useful guidance. It is unreasonable that the Independent

Counsel should be hamstrung by the need to prove every

proposition necessary for jurisdiction by the exacting stan-

dards suggested by the defense. If he were, even his investi-

gations would be severely limited, for the statute gives no

linguistic hook for requiring a lower standard of proof for

investigatory jurisdiction. Furthermore he, unlike every oth-

er prosecutor, would be unable to use a prosecution of an

__________

11 As Morrison was decided before the "inconsistent with the

purposes of this chapter" language was added to s 594(f)(1), see

Pub. L. No. 103-270, s 3(e)(1), 108 Stat. 734 (1994), the dissent's

reference to the case, see Dissent at 19, is puzzling. Absent a claim

that the new exception is itself unconstitutional, or that the amend-

ment renders the provision of an independent counsel unconstitu-

tional in its entirety, Morrison appears to have no bearing on our

interpretation of s 594(f)(1).

easily proved derivative offense as a substitute for prosecu-

tion of another, hard-to-prove offense. For the Independent

Counsel, a reasonable belief that the linking crime has been

committed should suffice.

We are not confronted here with a situation where the

money at issue is clearly untainted by possible underlying

obstruction. The timing, sources, and extent of the payments

make the belief that they were hush money reasonable. That

suffices.

* * *

The Supreme Court upheld the constitutionality of Con-

gress's independent counsel arrangements in Morrison v.

Olson. It is not for lower court judges to undercut that

decision by constructions of the Act that prevent this Inde-

pendent Counsel from performing his duty in a manner

reasonably approximating that of an ordinary prosecutor.

II. Immunity

Webster Hubbell invoked his Fifth Amendment privilege

against self-incrimination in response to a broad-reaching

subpoena duces tecum issued by the Office of the Indepen-

dent Counsel (the "Independent Counsel" or the "govern-

ment"). He delivered the specified documents only after the

Independent Counsel had obtained a grant of use-immunity

pursuant to 18 U.S.C. ss 6002, 6003. Within the personal

and financial records he produced, the government found

evidence which provided the keystone for a ten-count indict-

ment. Issued by a federal grand jury on April 30, 1998, the

indictment alleged that Webster Hubbell, together with his

wife Suzanna Hubbell, his tax lawyer Charles Owen and his

accountant Michael Schaufele, had committed various counts

of fraud and tax evasion. Hubbell moved to dismiss the

charges brought against him, and in the alternative for a

Kastigar hearing, see Kastigar v. United States, 406 U.S. 441

(1972), arguing that the government had violated his Fifth

Amendment privilege against self-incrimination in obtaining

an indictment based on his immunized document production.

Finding that the Independent Counsel had developed its case

solely on the basis of records that Hubbell had turned over

under the grant of statutory use-immunity, the district court

dismissed the indictment with respect to him. As the Inde-

pendent Counsel had only discovered the extent and nature of

Hubbell's alleged tax violations through his response to a

government subpoena, the court concluded that the Indepen-

dent Counsel had improperly turned Hubbell into the primary

witness against himself. The government appeals from this

ruling, asserting that the district court misconstrued the

protection accorded by the federal use-immunity statute, see

18 U.S.C. ss 6002, 6003, as well as the Fifth Amendment's

privilege against self-incrimination with which it is coexten-

sive. Because the district court utilized an improper legal

standard in assessing the scope of Hubbell's Fifth Amend-

ment privilege, we vacate its decision and remand for it to

conduct a hearing as to the extent of the Independent Coun-

sel's knowledge of the records maintained by Hubbell at the

time the subpoena issued.

A.Background

In the course of its ongoing investigation into possible

criminal activity related to Madison Guaranty Savings &

Loan Association and the Whitewater Development Corpora-

tion, the Independent Counsel learned that Webster Hubbell

had received payments from entities "associated with" Presi-

dent William Jefferson Clinton for consulting work allegedly

performed after Hubbell's 1994 resignation from his position

as the Associate Attorney General. See In re Madison Guar.

Sav. & Loan Ass'n, Div. No. 94-1 (D.C. Cir. Spec. Div. filed

Dec. 31, 1997) (application for order of referral to Indepen-

dent Counsel at 3). Through a preliminary investigation

undertaken on its own initiative, the Independent Counsel

sought to determine whether the payments were related to

what it later described as Hubbell's "unwillingness to cooper-

ate fully with the [Whitewater] investigation, as his plea

agreement obligated him to do." Id. On October 31, 1996,

the federal grand jury in the Eastern District of Arkansas

issued a subpoena directing Hubbell to turn over eleven

categories of business and income related documents, as well

as personal records of his activities and of his family's fi-

nances, covering the period from January 1, 1993 to the date

of the subpoena.12

__________

12 The subpoena commanded production of: a) all documents

reflecting, referring, or relating to any direct or indirect sources of

money or other things of value received by Webster Hubbell, his

wife or children (collectively, the "Hubbell family"), including but

not limited to the identity of employers or clients of legal or any

other type of work; b) all documents reflecting or referring to any

sources of money or other things of value received by the Hubbell

family, including billing memoranda, draft statements, bills, final

statements and/or bills for work performed or time billed; c) copies

of all bank records of the Hubbell family, including statements,

registers, ledgers, canceled checks, deposit items and wire trans-

fers; d) all documents reflecting time worked or billed by Webster

Hubbell during the course of any work performed or to be per-

formed; e) all documents reflecting expenses incurred by and/or

disbursements of money by Webster Hubbell for work performed

or to be performed; f) all documents reflecting Webster Hubbell's

schedule of activities, including but not limited to all calendars,

daytimers, time books, appointment books, diaries, records of re-

verse telephone toll charges, credit card calls, telephone message

slips, logs, other telephone records, minutes databases, electronic

mail messages, travel records, itineraries, tickets for transportation

of any kind, payments, bills, expense backup documentation, sched-

ules, and/or any other document or database that would disclose

Webster Hubbell's activities; g) all documents reflecting any retain-

er agreements or contracts for employment of the Hubbell family;

h) all tax returns, tax return information, including but not limited

to all W-2s, form 1099s, schedules, draft returns, work papers, and

backup documents filed, created or held by or on behalf of the

Hubbell family, and/or any business in which the Hubbell family

holds or has held an interest; i) all documents reflecting work

performed or to be performed for the City of Los Angeles, Califor-

nia, the Los Angeles Department of Airports or any other Los

Angeles municipal or governmental entity, Mary Leslie, and/or Alan

Arkatov, including but not limited to correspondence, retainer

agreements, contracts, time sheets, appointment calendars, activity

calendars, diaries, billing statements, billing memoranda, telephone

records, telephone message slips, telephone credit card statements,

itineraries, tickets for transportation, payment records, expense

On November 19, 1996, Hubbell appeared before a grand

jury in the Eastern District of Arkansas and formally invoked

his Fifth Amendment privilege against self-incrimination.

When questioned, he expressly "decline[d] to state whether

there are documents within my possession, custody, or control

responsive to the Subpoena." 11/19/1996 Tr. at 2. The

Independent Counsel had previously obtained an order signed

by Judge Susan Webber Wright--under 18 U.S.C. ss 6002,

6003--directing Hubbell to respond and granting immunity

"to the extent allowed by law." In re Grand Jury Proceed-

ings, No. GJ-96-3 (E.D. Ark. Nov. 14, 1996) (order compel-

ling production of documents). After receiving immunity,

Hubbell turned over some 13,120 pages of documents and

records. The Independent Counsel then led Hubbell through

__________

receipts, ledgers, check registers, notes, memoranda, electronic

mail, bank deposit items, cashier's checks, traveler's checks, wire

transfer records and/or other records of financial transactions; j) all

documents relating to work performed or to be performed by the

Hubbell family on the recommendation of Mary Leslie and/or Alan

Arkatov, including but not limited to correspondence, retainer

agreements, contracts, time sheets, appointment calendars, activity

calendars, diaries, billing statements, billing memoranda, telephone

records, telephone message slips, telephone credit card statements,

itineraries, tickets for transportation, payment records, expense

receipts, ledgers, check registers, notes, memoranda, electronic

mail, bank deposit items, cashier's checks, traveler's checks, wire

transfer records and/or records of other financial transactions; k)

all documents related to work performed or to be performed on

behalf of Lippo Ltd., the Lippo Group, the Lippo Bank, Mochtar

Riady, James Riady, Stephen Riady, John Luen Wai Lee, John

Huang, Mark Grobmyer, C. Joseph Giroir, Jr., or any affiliate

owned or controlled by such individuals or entities, including but

not limited to correspondence, retainer agreements, contracts, time

sheets, appointment calendars, activity calendars, diaries, billing

statements, billing memoranda, telephone records, telephone mes-

sage slips, telephone credit card statements, itineraries, tickets for

transportation, payment records, expense receipts, ledgers, check

registers, notes, memoranda, electronic mail, bank deposit items,

cashier's checks, traveler's checks, wire transfer records and/or

records of other financial transactions.

a series of questions tied to each of the eleven categories of

documents requested in the subpoena. With respect to each,

the Independent Counsel read the relevant paragraph (or a

summary thereof) and then asked either, "Did you provide all

those documents?" or "Those are all the records in your

possession, custody, or control; is that correct?" Hubbell

answered "Yes" to all eleven queries.13 The Independent

Counsel closed the session by inquiring "have you searched or

have you made a thorough search or caused a thorough

search to be made in response to this Subpoena?" Hubbell

again replied "Yes." 11/19/1996 Tr. at 11-12.

The Independent Counsel's search for evidence into wheth-

er Hubbell might have obstructed its Whitewater investiga-

tion revealed potential violations of the Internal Revenue

Code. Using the contents of the documents Hubbell turned

over to the grand jury, the Independent Counsel identified

and developed evidence that culminated in the prosecution at

issue in this case. On April 30, 1998, a federal grand jury in

the District of Columbia issued a ten-count indictment alleg-

ing that Webster Hubbell, Suzanna Hubbell, Michael Schau-

fele and Charles Owen14 had conspired to defraud the United

States Department of the Treasury and Internal Revenue

Service, the State of Arkansas, the District of Columbia, and

the Rose Law Firm of monies owed by Webster and Suzanna

Hubbell (collectively, the "Hubbells").15 The indictment fur-

__________

13 With respect to paragraphs f and j, Hubbell answered "Yes.

Subject to the attorney/client privilege." 11/19/1996 Tr. at 9-10.

14 Michael Schaufele is a certified public accountant, and Charles

Owen an attorney. Both are personal friends of Webster and

Suzanna Hubbell, and each provided help in the transactions under-

lying the indictment.

15 The indictment provides a detailed accounting of the Hubbells'

financial position from January 1994 through December 1997, sur-

veying their earnings as well as their spending patterns. It docu-

ments all of their employment and investment-related sources of

income, trust agreements and trust accounts set up in their name,

as well as their personal bank accounts and IRA accounts. It also

ther alleged that all four defendants had endeavored to

obstruct and impede the due administration of the revenue

laws, in violation of 26 U.S.C. s 7212(a), to evade payment of

the proper income tax owed by the Hubbells for the calendar

years 1989-1992 and 1994-1995, in violation of 26 U.S.C.

s 7201, and committed both mail and wire fraud, in violation

of 18 U.S.C. ss 1341, 1343. Additionally, Michael Schaufele

and Webster Hubbell were each charged with preparing and

presenting a fraudulent tax return, in violation of 26 U.S.C.

s 7206(2).

Substantively, the indictment alleged that Webster Hubbell

had received large payments for consulting services, and then

conspired to hide this and other income through elaborate

financial machinations. Inter alia, the indictment claims that

Hubbell under-reported his 1994 consulting income by ap-

proximately $74,000, and failed to make any payments to-

wards the tax obligations arising out of either the roughly

$375,000 he did acknowledge earning or the $178,000 already

owed from the willful tax evasion charge to which he had pled

guilty on December 6, 1994.16 He also made premature

withdrawals of more than $233,000 from his Individual Retire-

ment Account ("IRA") without paying the withholding taxes.17

__________

discusses the tax payments made by the Hubbells, their outstanding

tax liabilities and other debts, and their consumer purchases.

16 The Hubbells did not make any tax payments in 1995 either,

despite incurring an additional tax liability of greater than $112,000.

17 On each occasion, either Hubbell or Schaufele expressly elected

that there be no withholding. The final withdrawal involved what

the Independent Counsel has labeled the "Pension Account Check

Swap." Hubbell had borrowed approximately $29,000 against his

profit sharing/pension plan at the Rose Law Firm. Instead of

defaulting on the loans, which would have required mandatory

payment of 20% withholding, Schaufele arranged a transaction in

which the Rose Law Firm paid the $29,000 out of its profit sharing

plan into Hubbell's IRA account. Hubbell had previously given

checks to the Rose Law Firm covering the same amount, which

were cashed directly after the pension money entered Hubbell's

IRA. Hubbell thereby avoided the automatic 20% withholding

otherwise accompanying a premature pension plan withdrawal.

In December of 1994 and January of 1995, the Hubbells

executed three trust agreements--the Webster Hubbell Le-

gal Expense Trust, the Hubbell Children's Education Trust,

and the Hubbell Family Support Trust--for each of which

Michael Schaufele opened a separate non-interest bearing

trust account18 at the Metropolitan National Bank in Little

Rock, Arkansas. In May of 1996, Michael Schaufele opened

another non-interest bearing checking account, "for the bene-

fit of Webb and Suzy Hubbell," at Pulaski County Bank in

Little Rock, and then used the account to make funds avail-

able for the Hubbells' personal spending. In March of 1997,

Charles Owen prepared Articles of Organization for a compa-

ny entitled the Bridgeport Group, LLC, in which Webster

and Suzanna Hubbell each owned a forty-nine percent inter-

est and the Hubbell Children's Education Trust the remain-

ing two percent. When Hubbell entered into a book contract

with William Morrow and Co. later that year, his $49,500

advance went into the Bridgeport Group's account at Pulaski

Bank. The indictment broadly alleges that the Hubbells

utilized these varied financial structures so as to spend down

their earnings and assets without paying the nearly $900,000

they owed in taxes to the federal government, the state of

Arkansas, and the District of Columbia.

In a July 1, 1998 Memorandum Opinion, the district court

granted Webster Hubbell's motion to dismiss the indictment

as violative of the order giving him immunity and compelling

his response to the grand jury's subpoena duces tecum. It

found that all of the evidence to be offered by the Indepen-

dent Counsel at trial derived, either directly or indirectly,

from Hubbell's immunized response. Beginning with the

proposition articulated in Kastigar v. United States, 406 U.S.

441, 453 (1972) that "a grant of immunity must afford protec-

tion commensurate with that afforded by the privilege"

against self-incrimination, the district court sought to discern

the scope of the protection offered by section 6002 through

__________

18 Non-interest bearing bank accounts do not generate Form

1099s, a copy of which would be sent directly to the Internal

Revenue Service. See 26 C.F.R. s 1.6049-4.

examining the extent of Hubbell's Fifth Amendment privi-

lege. Drawing from the framework sketched in Fisher v.

United States, 425 U.S. 391 (1976), and reiterated in United

States v. Doe, 465 U.S. 605 (1984) (Doe I), it focused upon the

testimonial and incriminating aspects of the act of production.

In light of the government's admission that it had utilized

"the information provided by Mr. Hubbell pursuant to the

production immunity," United States v. Hubbell, 11 F. Supp.

2d 25, 34 (D.D.C. 1998), the court found that Hubbell had not

only communicated the authenticity and his possession of the

documents, but also implicitly testified as to the very exis-

tence of documents which added to the "sum total" of the

government's information against him.19 Neither the exis-

tence of the documents nor their contents was a "foregone

conclusion," Fisher, 425 U.S. at 411, because the Independent

Counsel had no source of knowledge independent of Webster

__________

19 The dissent incorrectly argues that "[h]ere the only interesting

issue is the 'existence' theory; possession and authentication seem

properly outside the case." Dissent at 1. The district court found

that Hubbell implicitly testified as to the existence, his possession,

and the authenticity of the documents turned over pursuant to the

compelled act of production. See Hubbell, 11 F. Supp. 2d at 35

(arguing that the analysis turns on whether Hubbell implicitly

testified "only that the documents were authentic, or only that they

were in his possession, or did he also implicitly testify as to their

very existence?") (emphasis added). The district court did focus

its discussion on the government's knowledge of the documents'

existence, but this emphasis likely emerged from its erroneous

reading of Fisher's existence prong, see discussion infra p. 54,

together with its reliance on two law review articles arguing that

where the government is ignorant as to the existence of subpoenaed

documents, the Fifth Amendment's protection necessarily extends

to the contents of those documents. See Hubbell, 11 F. Supp. 2d at

35 n.13 (citing Robert P. Mosteller, Simplifying Subpoena Law:

Taking the Fifth Amendment Seriously, 73 Va. L. Rev. 1, 41-43

(1987); Kenneth J. Melilli, Act-of-Production Immunity, 52 Ohio

St. L.J., 223, 258-60 (1991)). While the court emphasized existence,

its findings were not so limited. Because we are not just "left with

'existence,' " Dissent at 1, our discussion speaks in general terms of

existence, possession and authenticity.

Hubbell's immunized act of production. When it utilized the

information contained in Hubbell's response to build a case

against him, the court concluded, the Independent Counsel

violated Webster Hubbell's rights under the Fifth Amend-

ment and the order of immunity. Accordingly, it dismissed

Hubbell's indictment.

B. Discussion

1. Hubbell's Privilege Against Self-Incrimination

a. The Basic Fifth Amendment Framework for Com-

pelled Document Production

In delineating the proper scope of the Fifth Amendment's

privilege against self-incrimination, the Supreme Court has

crafted a framework that requires the presence of each of

three distinct elements for an individual to make out a claim.

Whether addressed to oral testimony or to documentary

evidence, the doctrine necessitates a showing of: i) the com-

pulsion; ii) of testimony; iii) that incriminates. See Fisher,

425 U.S. at 409 ("the privilege protects a person only against

being incriminated by his own compelled testimonial commu-

nications").

Any discussion of the Fifth Amendment's application to the

production of documents pursuant to a subpoena duces tecum

necessarily begins with Fisher and Doe I. These cases

collectively establish the two propositions that structure our

inquiry. First, Fisher teaches that the Fifth Amendment

does not protect the contents of pre-existing, voluntarily

prepared documents. Even if written by the hand of the

accused, the Fifth Amendment does not extend to writing

that was not itself compelled. See Fisher, 425 U.S. at 409;

Doe I, 465 U.S. at 612 n.10 ("If the party asserting the Fifth

Amendment privilege has voluntarily compiled the document,

no compulsion is present and the contents of the document

are not privileged."). While the contents of preexisting docu-

ments are not protected, the Court has acknowledged that

there are testimonial and potentially incriminating communi-

cations inherent in the act of responding to a subpoena which

may themselves be protected by the Fifth Amendment. See

Fisher, 425 U.S. at 410 ("The act of producing evidence in

response to a subpoena nevertheless has communicative as-

pects of its own, wholly aside from the contents of the papers

produced."). The enforcement authority that rests behind

the issuance of any subpoena provides the requisite compul-

sion. See id. at 409.

Specifically, the act of production communicates at least

four different statements. It testifies to the fact that: i)

documents responsive to a given subpoena exist; ii) they are

in the possession or control of the subpoenaed party; iii) the

documents provided in response to the subpoena are authen-

tic;20 and iv) the responding party believes that the docu-

ments produced are those described in the subpoena. See

Fisher, 425 U.S. at 410; Doe I, 465 U.S. at 614 n.13.21

__________

20 Although this prong has received little independent discussion,

the Court's Doe I analysis strongly implies that authenticity refers

to something other than the party's belief that surrendered docu-

ments match those described in the subpoena. There, the Court

discusses authenticity in terms of admissibility under Rule 901 of

the Federal Rules of Evidence, recognizing that the act of produc-

tion could relieve the government of the need to authenticate

evidence. See Doe I, 465 U.S. at 614 n.13. In this sense, authentic-

ity refers to whether a document is genuine, as opposed to a

forgery or fabrication. For example, to the extent that Hubbell

turned over a calendar that recorded how he allocated his time, his

compelled act of production testifies to the calendar's authenticity.

21 A number of our sister circuits have reduced these four poten-

tial statements down to two questions: i) whether production

admits the existence, possession or control of the documents; and

ii) whether production implicitly authenticates the documents or

verifies that they are those sought in the subpoena. See, e.g.,

United States v. Fishman, 726 F.2d 125, 127 (4th Cir. 1983);

United States v. Fox, 721 F.2d 32, 36 (2d Cir. 1983). Given that the

elements are identical, we see no conceptual difference in describing

the inquiry as raising four or two potential questions.

We do reject, however, our dissenting colleague's attempt to

eliminate outright two of the four statements that, as the Supreme

Court instructed in Fisher and Doe I, are potentially communicated

through the act of production. The dissent collapses the first and

Nevertheless, not every act that communicates one or more of

these statements rises to the level of a protected communica-

tion under the Fifth Amendment. As Fisher itself illustrates,

the act of producing documents in response to a subpoena will

not merit protection unless it communicates something of

substance to the state. Where the government already has

the knowledge that would otherwise be conveyed, "[t]he

question is not of testimony but of surrender." Id. at 411

(quoting In re Harris, 221 U.S. 274, 279 (1911)).

In Fisher, the IRS had issued a summons to a taxpayer's

attorney to produce documents that had been prepared by

the taxpayer's accountant. At the time the subpoena issued,

the IRS knew a great deal about the requested documents.

In each of the two cases jointly considered by the Fisher

Court, the IRS had highly specific knowledge as to the

existence of the accountant's work papers as well as to their

location in the hands of the summoned attorney. See id. at

394 ("In No. 74-18 the documents demanded were analyses

by the accountant of the taxpayers' income and expenses

which had been copied by the accountant from the taxpayers'

canceled checks and deposit receipts.").22 Moreover, as the

papers originally belonged to the accountant, they could be

authenticated independent of the taxpayer's communicative

__________

third statements--existence and authentication--into the fourth,

asking only whether the subpoenaed party has linked the docu-

ments produced to those described in the subpoena. See Dissent at

5 ("the only sense of 'existence' that is covered by the Fifth

Amendment is that which refers back to the subpoena.... [to] the

witness's implicit match of the documents with the subpoena's

description."). This exclusive obsession with what it calls "the

context of the subpoena," Dissent at 11, disregards the letter as

well as the logic of Fisher and Doe I, effectively eviscerating the

Fifth Amendment's act of production privilege. See discussion

supra pp. 28-29 and note 20; infra pp. 40-45, 60-61.

22 In the other case, No. 74-611, the documents entailed an

accounting firm's work papers concerning the taxpayer's books and

records, retained copies of income tax returns, and retained copies

of correspondence between the firm and the taxpayer. See id. at

394.

act of production. The testimony implicit in responding to

the subpoena was essentially empty, as it did not augment the

government's preexisting knowledge perceptibly. In these

circumstances--where the "existence and location of the pa-

pers are a foregone conclusion and the taxpayer adds little or

nothing to the sum total of the Government's information by

conceding that he in fact has the papers," and where "the

Government is in no way relying on the 'truthtelling' of the

taxpayer to prove the existence of or his access to the

documents," id. at 411--the Court held that the Fifth Amend-

ment's protections were not implicated. See id.

Doe I provides an illustrative counterpoint, as the govern-

ment there knew little about the documents it subpoenaed.

As part of its investigation into corruption in the awarding of

municipal contracts, a grand jury issued five separate subpoe-

nas to the respondent that collectively sought a wide range of

business records from his various solo proprietorships. In

the proceedings below on his motion to quash, the district

court had concluded that "enforcement of the subpoenas

would compel respondent to admit that the records exist, that

they are in his possession, and that they are authentic....

The government argues that the existence, possession and

authenticity of the documents can be proved without respon-

dent's testimonial communication, but it cannot satisfy this

court as to how that representation can be implemented to

protect the witness in subsequent proceedings." Id. at 613

n.11. Similarly, the Third Circuit found nothing indicating

that the government "knows, as a certainty, that each of the

myriad of documents demanded by the five subpoenas in fact

is in the appellee's possession or subject to his control. The

most plausible inference to be drawn from the broad-

sweeping subpoenas is that the Government, unable to prove

that the subpoenaed documents exist ... is attempting to

compensate for its lack of knowledge by requiring the appel-

lee to become, in effect, the primary informant against him-

self." Id. at 613-14 n.12. Finding that the government had

failed to rebut respondent's claim "by producing evidence that

possession, existence, and authentication were a 'foregone

conclusion,' " id. at 614 n.13, the Supreme Court upheld the

lower court's factual determination that complying with the

subpoena would involve testimonial self-incrimination. See

id. at 614.

Against this settled backdrop, the case at bar presents a

series of unsettled questions. Our sister courts have yet to

reach agreement on the particular elaboration and proper

application of the Fisher and Doe I framework. The degree

to which a communication must be testimonial, what the Doe

I Court described as its "testimonial value," 465 U.S. at 613,

before it will invoke the Fifth Amendment's protections nec-

essarily falls somewhere in between the poles represented by

Doe I and Fisher. Precisely where on this continuum a given

document production crosses the rubicon remains undeter-

mined. The same can be said for the requisite quantum of

incrimination. Finally, since Webster Hubbell produced the

subpoenaed documents under a grant of immunity, we must

also determine the extent of the protection afforded by sec-

tion 6002. As Kastigar teaches, that inquiry leads us straight

back to the scope of the Fifth Amendment privilege. See 406

U.S. at 453 (immunity must be commensurate with the Fifth

Amendment's protections). Bearing in mind the Supreme

Court's prescription that "[t]hese questions perhaps do not

lend themselves to categorical answers," and that "their

resolution may instead depend on the facts and circumstances

of particular cases or classes thereof," Fisher, 425 U.S. at

410; Doe I, 465 U.S. at 613, we discuss each in turn.

b. Testimonial Communications

The court below found that Hubbell's compelled act of

production required him to make communications as to the

authenticity, possession, and existence of the documents. See

Hubbell, 11 F. Supp. 2d at 35.23 Sidestepping this conclusion,

the Independent Counsel argues that the Fifth Amendment's

protection should not attach because Hubbell's response to

the subpoena had insufficient testimonial value. In its view,

__________

23 The district court erred, however, in focusing upon the Inde-

pendent Counsel's knowledge of contents of the subpoenaed docu-

ments and the information contained therein. See discussion infra

p. 54.

the documents' existence was what Fisher described as a

"foregone conclusion." Accordingly, the actual act of produc-

tion itself--the only compelled communication involved in the

case of a document subpoena--did not rise to a level of

communication that would merit the Fifth Amendment's pro-

tection. We disagree.

The Independent Counsel glosses over what we consider to

be an essential component of any inquiry into the testimonial

value of a given act of production--the quantum of informa-

tion possessed by the government before it issued the rele-

vant subpoena. Instead, it makes two separate assertions as

to why the documents' existence should be deemed a foregone

conclusion. First, the Independent Counsel claims that the

most natural reading of Fisher counsels against recognizing a

testimonial value in the production of ordinary income, finan-

cial, and business records like those subpoenaed here. Since

people generally possess such records, and since the govern-

ment cannot be expected or required to know with exactitude

the documents that any individual suspected of wrongdoing

might have at a given time, the existence of these categories

of documents, and of corresponding documents falling within

the categories, should be regarded as a foregone conclusion.

However, the Independent Counsel's argument is not only

flawed in logical terms, but it misconstrues Supreme Court

precedent in this admittedly abstract and under-determined

area of the law. The argument makes the classical error in

the field of logic of assuming that the occurrence of future

events can be logically deduced from observations rooted in

the past. Empirical knowledge, as David Hume and Ber-

trand Russell teach, can only be a postiori, not a priori. See

David Hume, Enquiries Concerning the Human Understand-

ing and Concerning the Principles of Morals s IV (L.A.

Selby-Biggs ed., 1980); Bertrand Russell, The Problems of

Philosophy, 60-69 (Galaxy 1959) (that the sun rose today and

as far back as the mind remembers does not establish that it

will rise tomorrow). Moreover, contrary to the Independent

Counsel's characterization, the Supreme Court's cases reflect

such an understanding, and require actual knowledge rather

than mere inductive generalizations. In Fisher, for example,

the IRS had precise knowledge of the existence and location

of accountant's work papers sought through the challenged

subpoena. The taxpayer had also stipulated to both the

existence of the documents and that they were those de-

scribed in the subpoena. See Fisher, 425 U.S. at 430 n.9

(Brennan, J., concurring). The actual production of such

records accordingly added little, independent of the docu-

ments' substance, to the government's quantum of knowledge.

Its testimonial value was negligible. In Doe I, by contrast,

where the government sought a broad range of material

which could similarly be classified as ordinary income, finan-

cial and business records, the Court held that the act of

production would have testimonial value meriting Fifth

Amendment protection.24 While the Court left open the

__________

24 The dissent attempts to obscure the Court's holding by arguing

that "the implications [of Doe I] are quite unclear." Dissent at 5-6.

"The Court relied explicitly and entirely on the 'two courts' rule,"

and although it rehearsed "the arguments embraced in the courts

below," it relied "on the anticipated use of the act of production for

authentication of the documents, i.e., use of an indisputably testimo-

nial aspect of subpoena compliance." Id. The dissent's dual con-

cerns about the continuing viability of Doe I are, respectively,

unfounded and inaccurate. The Doe I Court did rely upon the "two

court" rule in upholding the fact-findings of the district and appel-

late courts below, but that reliance in no way undercuts the vitality

of its legal holding. The "two-court" rule rests upon the division of

labor within the federal courts, and the Supreme Court's station

atop this structure as the court of last resort. As the Supreme

Court noted in Rogers v. Lodge, 458 U.S. 613, 622-23 (1982), the

case cited for the "two-court" rule in Doe I, reviewing courts do not

generally operate as finders of fact; they disturb historical fact

determinations only when clearly erroneous. Supreme Court Rule

10, which indicates the character of the reasons the Court finds

compelling when considering a petition for a writ of certiorari,

testifies to the Court's almost exclusive legal focus. As reasons for

granting a petition, it lists: inter-circuit splits, conflicts between a

circuit court and a state court of last resort on an important federal

question, conflicts between two state courts of last resort on an

important federal question, and decisions by a circuit court or a

state court of last resort on an important legal conclusion that

should be settled by the Court. See Sup. Ct. R. 10. "A petition for

possibility in future cases that the government could rebut

such a finding by producing evidence that would establish its

prior knowledge, the fact that the subpoena sought income,

financial and business records did not undercut the testimoni-

al value of the act of production. See Doe I, 465 U.S. at 614

n.13.

The other cases relied upon by the Independent Counsel

are equally ineffectual in bolstering its assertions. In United

States v. Rue, 819 F.2d 1488 (8th Cir. 1987), cited for the

proposition that courts should assess the testimonial value of

document production by reference solely to a document's

__________

a writ of certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the misapplication of a

properly stated rule of law." Id.

Any assertion that the Doe I Court's reliance on the "two-court"

rule somehow undercuts its precedential force ignores the Supreme

Court's understanding of its role atop the judicial branch. The

factual conclusions on which the Court relied--that the witness's act

of production would involve testimonial self-incrimination by com-

municating the existence, possession, and authenticity of the sub-

poenaed documents--were only relevant to the extent that their

presence had legal consequences. Despite the dissent's attempt to

argue it away, Doe I explicitly held that the Fifth Amendment

protects against such compelled communication, see 465 U.S. at 614,

and that the subpoena could not be enforced absent a grant of

statutory use-immunity under 28 U.S.C. ss 6002, 6003. See id. at

617.

The dissent's second argument for limiting Doe I is misleading.

As the dissent points out, the Court did reference "the anticipated

use of the act of production for authentication of the documents."

Dissent at 6. In the preceding sentences, however, the Court also

noted respondent's argument that "by producing the records, he

would tacitly admit their existence and his possession." Doe I at

614 n.13. The Court left open the possibility that the government

could rebut respondent's claim by producing evidence that would

show this testimonial communication to be a foregone conclusion,

but its holding clearly embraced all three elements as potentially

testimonial. Under Fisher and Doe I, all three--existence, posses-

sion, and authentication--are "indisputably testimonial aspect[s] of

subpoena compliance." Dissent at 6.

category, the Eighth Circuit did not hold--as the Indepen-

dent Counsel claims--that affixing a label of "financial" or

"business" to characterize a set of records would be sufficient

to make their existence, possession or authenticity a foregone

conclusion. While the court did speak in terms of categories

of documents, it did so because the subpoena itself had sought

four separate categories of documents in the same way that

the subpoena here sought eleven categories (or contained

eleven paragraphs). In Rue, before the contested subpoena

even issued IRS agents had actually been permitted to exam-

ine monthly and year-end statements relating to Dr. Rue's

dentistry practice, forms containing individual patient treat-

ment information used to produce those financial statements,

and appointment books. See Rue, 819 F.2d at 1490. As to

these three categories, the government had first-hand knowl-

edge of the documents' existence and their whereabouts. As

to the fourth--patient records detailing services rendered and

accompanying charges--Dr. Rue's repeated admissions that

the documents existed and the capacity for independent au-

thentication by other witnesses supported the conclusion that

any testimony rendered through production was a foregone

conclusion. See id. at 1493-94.

United States v. Fishman, 726 F.2d 125 (4th Cir. 1983),

similarly defies the characterization that the Independent

Counsel tries to give it; that generalized knowledge about

particular occupations can make the existence of documents a

foregone conclusion.25 In support of this contention, the

Independent Counsel cites language in the Fourth Circuit's

opinion that "[b]eing business records of Dr. Fishman, their

existence in the circumstances of this particular case and his

possession or control are self-evident truths, and hardly need

to be proven through resort by the Government to the act by

the owner in turning them over." Id. at 127. However, this

sentence comes from a paragraph discussing the question of

__________

25 Given the nature of Hubbell's consulting work following his

departure from the Justice Department, the Independent Counsel

claims it to be a foregone conclusion at the time of the subpoena

that authentic business records existed and were in Hubbell's

possession.

potential incrimination, and is immediately preceded by the

statement that "it is difficult to contemplate how mere exis-

tence, possession or control of the documents amounts to

incriminating evidence." Id. (emphasis added). Moreover,

in discussing the testimonial value of the act of production,

independent from the question of incrimination, the Fishman

opinion expressly disavows the reading that the Independent

Counsel attempts to place upon it here. Rejecting the con-

tention that Dr. Fishman had implicitly admitted the exis-

tence and his possession of the documents, the court noted

that Dr. Fishman's "generalized reference to the subpoenaed

records acknowledges the existence of a category, but does

not make any representation or admission as to what docu-

ments fall into it, or whether any particular document is in

existence." Id. at 127 n.4. We agree with the Fourth Circuit

that mere reference to a category of records, and the accom-

panying belief that certain individuals should maintain them,

cannot and does not eliminate the testimonial value inherent

in the act of production. The government's knowledge must

have greater depth, and a substantiation that goes beyond

mere conjecture. See Fox, 721 F.2d at 37 (rejecting argu-

ment from revenue agent's experience as to whether physi-

cian likely maintains records sought via subpoena).

Second, the Independent Counsel asserts that it actually

had the requisite knowledge of the existence and Hubbell's

possession of the documents sought through the grand jury's

subpoena. We cannot agree on the record before us. The

Independent Counsel relies upon the fact that Hubbell had

discussed his consulting work in testimony given before Con-

gress, and that the Department of Transportation Inspector

General had issued a report which discussed Hubbell's work

for the Los Angeles Department of Airports. Taken togeth-

er, though, these snippets of information do not come close to

establishing the existence of the myriad of documents sought

through the subpoena. The knowledge that Hubbell had one

or two clients establishes very little else, and certainly does

not even approach the level of establishing that Hubbell had

done work for fifteen separate clients, let alone the type of

records he kept of those activities. The Independent Counsel

also emphasizes its thorough knowledge of Hubbell's financial

records as a result of its investigation into charges that

Hubbell committed tax and mail fraud while working at the

Rose Law Firm. During the period of time with which the

Independent Counsel claims familiarity--1989-1992--Hubbell

worked as the billing partner at a law firm in Little Rock,

Arkansas. During the period of time underlying this prose-

cution, Hubbell worked in Washington, D.C. as a consultant,

and served out a term in prison for the mail and tax fraud

counts to which he previously pled guilty. Unless the Inde-

pendent Counsel can establish its knowledge with a greater

degree of specificity, the mere allegation that it was once

familiar with Hubbell's finances does not make the existence

or possession of the records sought a foregone conclusion.

See Maggio v. Zeitz, 333 U.S. 56, 65 (1948) (orders enforcing

a subpoena "should not be issued ... merely on proof that at

some past time [the summoned documents were] in [the]

possession or control of the accused party, unless the time

element and other factors make that a fair and reasonable

inference").

i. The Legal Standard

To formulate an appropriate legal standard as to the de-

gree of prior knowledge needed to render the existence,

possession or authenticity of documents a foregone conclu-

sion, it is necessary to return to first principles. See Doe v.

United States, 487 U.S. 201, 209 (1988) (describing Fisher and

Doe I as applying "basic Fifth Amendment principles" articu-

lated in general terms) (Doe II). As the Supreme Court

moved away from the doctrine articulated in Boyd v. United

States, 116 U.S. 616, 634-35 (1886) ("a compulsory production

of the private books and papers of the owner of goods sought

to be forfeited ... [compels] him to be a witness against

himself, within the meaning of the Fifth Amendment to the

Constitution."), and towards a more literal interpretation of

the privilege against self-incrimination, see Fisher, 425 U.S. at

401 ("We cannot cut the Fifth Amendment completely loose

from the moorings of its language ..."), it jettisoned the

personal privacy justification in favor of a rationale tied far

more directly to the nature of government compulsion.

The core idea can be traced back at least to Justice

Holmes' decision in Holt v. United States, 218 U.S. 245 (1910),

in which the Court rejected a Fifth Amendment challenge to

a witness' testimony establishing that the defendant had

donned and fit into a blouse worn in a murder for which he

was being tried. Dismissing what he characterized as an

"extravagant" allegation, Justice Holmes explained that "the

prohibition of compelling a man in a criminal court to be

witness against himself is a prohibition of the use of physical

or moral compulsion to extort communications from him, not

an exclusion of his body as evidence when it may be materi-

al." Id. at 252-53. Justice Holmes thereby drew a funda-

mental distinction between government action that extorts

communication--such action falls within the umbrella of pro-

tection afforded by the Fifth Amendment--and government

action that merely utilizes the body of the accused as a form

of evidence--that kind of action falls outside the Amend-

ment's particular orbit. Subsequent cases echo and develop

this focus upon the Fifth Amendment as a barrier against

compulsion that acts upon, and requires the exercise of an

individual's mental faculties for communication.26 Schmerber

v. California, 384 U.S. 757, 764-65 (1966) (privilege against

self-incrimination does not extend to a compelled blood sam-

ple), Gilbert v. California, 388 U.S. 263, 265-67 (1967) (privi-

lege does not extend to compelled handwriting exemplar),

United States v. Wade, 388 U.S. 218, 222-23 (1967) (privilege

does not extend to compelled voice exemplar), and United

States v. Dionisio, 410 U.S. 1, 5-6 (1973) (privilege does not

__________

26 The dissent argues that we "confuse[ ] the issue with [this]

rather odd distinction." Dissent at 6. However, as our ensuing

discussion well indicates, this distinction derives directly from the

Supreme Court's decisions in Holt and its progeny. See also

Pennsylvania v. Muniz, 496 U.S. 582, 597 (1990) (distinguishing the

compelled presentation of identifying physical characteristics from

the requirement that a suspect "communicate an express or implied

assertion of fact or belief," as the latter imposes "the 'trilemma' of

truth falsity or silence and hence the response ... contains a

testimonial component"). The dissent appears to assume the liber-

ty to write on a clean slate.

extend to compelled voice sample), all rely upon the essential

distinction between compulsion which operates upon the mind

by forcing the accused to communicate information or testi-

mony, and compulsion which merely requires him to produce

his body for inspection. While in each instance the govern-

ment draws evidentiary inferences as a result of the compul-

sion, the Fifth Amendment only protects against those infer-

ences which derive from compelled communication. See

Pennsylvania v. Muniz, 496 U.S. 582, 593 (1990) (though

videotape of the defendant exhibiting signs of intoxication

does not violate the Fifth Amendment, videotape showing the

defendant's inability to respond to a question about the date

of his sixth birthday does); Doe II, 487 U.S. at 211 n.10

(describing the Schmerber line of cases as distinguishing

between "the suspect's being compelled himself to serve as

evidence and the suspect's being compelled to disclose or

communicate information or facts that might serve as or lead

to incriminating evidence"); Schmerber, 384 U.S. at 765 ("Not

even a shadow of testimonial compulsion upon or enforced

communication by the accused was involved either in the

extraction or in the chemical analysis" of appellant's blood);

Dionisio, 410 U.S. at 5-6 ("It has long been held that the

compelled display of identifiable physical characteristics in-

fringes no interest protected by the privilege against compul-

sory self-incrimination.").

The dissent misreads the letter and logic of Fisher and Doe

I because it fails to grasp the significance of the Supreme

Court's distinction between compulsion which uses the body

as evidence and that which operates upon the mind by

compelling communicative acts. Instead, our colleague at-

tempts to dissect the testimonial and non-testimonial ele-

ments of providing blood, voice and handwriting samples. He

argues that in giving blood, a person implicitly says, "This is

my blood", Dissent at 3; in providing a handwriting sample,

the accused admits his ability to write and that the exemplar

is his. See id. at 4. But because in both these cases, it will

require another witness to identify the accused's voice as that

of a bank robber, or DNA testing to match the accused's

blood with stains left at a crime scene, the giving of blood or

an exemplar will not be considered protected testimony. See

id. at 3. While undoubtedly true, the point is ultimately

tangential to the proper inquiry. The real question at issue

in Holt, Schmerber, Wade, and Gilbert was whether the

government had merely used the accused's body as a form or

piece of evidence, or whether the government had to compel

communicative testimony to obtain the evidence it needed.

Justice Holmes' Holt opinion likened trying on a blouse to

simply sitting before the jury and allowing them to compare

your features to that contained in a photograph of the perpe-

trator. See 218 U.S. at 253. While it can be argued that the

accused implicitly testified about something in each of the

cases cited by the dissent--that this is my blood containing

my unique DNA, that this is my face with all of its character-

istic idiosyncracies, that this is my body with a particular

shape and size which fits into this blouse--that testimony was

irrelevant to the Fifth Amendment inquiry because it re-

quired no act of will on his part as to what he would

communicate. The same reasoning applies to a compelled

submission to fingerprint analysis. The suspect can be said

to be communicating that this is my hand and it contains five

fingerprints unique to my person, but in reality the individual

has merely been compelled to make himself available as a

"source of 'real or physical evidence.' " Schmerber, 384 U.S.

at 764. For purposes of Fifth Amendment analysis, it is

dispositive that the government has no need to rely upon the

witness's truthtelling to secure the evidence it seeks.

The dissent cites to Holt, Schmerber, Wade, and Gilbert for

the proposition that where the government can draw a link

between evidence and the accused, independent of the ac-

cused's testimony, the Fifth Amendment does not apply. See

Dissent at 2-5, 11. None of these cases, read individually or

taken together, however, stands for this general proposition.

All of the cases focused on whether the act in question was

communicative or noncommunicative--whether it relied upon

the individual's mental faculties and truthtelling capacity or

merely used the body as a source of physical evidence--and

not on whether the prosecution could link evidence to the

accused without relying on his testimony.27 In each, the

__________

27 The dissent's almost exclusive focus on blood and handwriting

stems from its conflation of fundamentally separate inquiries. It

measures the testimonial character of a compelled subpoena re-

sponse by asking, after the fact, whether produced documents can

be independently linked back to Hubbell. While these questions go

to the testimonial value of a given act of production, which is

properly assessed by asking whether the existence, possession or

authenticity of the documents was a foregone conclusion, the dissent

assumes that they instead speak to the prior inquiry into whether

the act of production is testimonial. Fisher, Doe I, and Braswell

have already settled this question, teaching that the act of produc-

tion is inherently communicative. Accordingly, these cases repudi-

ate the dissent's assumption.

The dissent also misreads Baltimore Dept. of Social Servs. v.

Bouknight, 493 U.S. 549 (1990), conflating its inquiry into whether

the state could compel production despite Fifth Amendment objec-

tions with a separate and conceptually distinct examination of

whether that compelled act of production would communicate testi-

mony. In Bouknight, the Court held that a mother could not refuse

a juvenile court order to produce her child, whom social services

suspected she abused, by asserting her privilege against self-

incrimination. The Court based its decision on the fact that the

child--Maurice--had been declared a "child in need of assistance,"

id. at 552, a judicial determination asserting jurisdiction over Mau-

rice and assigning oversight responsibilities to the Baltimore City

Department of Social Services. Ultimately, the Bouknight Court

confronted a single question--whether the state juvenile court could

compel Bouknight to produce her child--and held that Maurice's

mother had no choice but to comply. Although the Court concluded

that Bouknight could "not invoke the privilege to resist the produc-

tion order because she has assumed custodial duties related to

production and because production is required as part of a noncrim-

inal regulatory regime," id. at 555-56 (emphasis added), the dissent

mistakenly approaches the case as though it rested on a finding that

production would not be testimonial. Because it does not, see id. at

561-62 (explicitly referencing Fifth Amendment limitations on using

any testimonial aspects of Bouknight's compelled producing in

subsequent criminal proceedings), the dissent's focus upon parsing

the mental from the physical components of any act producing

Supreme Court concluded that there had been no testimony;

accordingly, the Fifth Amendment did not apply. See, e.g.,

Schmerber, 384 U.S. at 761 n.5 (distinguishing acts communi-

cative in nature from the noncommunicative); Doe II, 487

U.S. at 211 n.10 (the Schmerber line of cases "distinguished

between the suspect's being compelled to serve as evidence

and the suspect's being compelled to disclose or communicate

information or facts that might serve as or lead to incrimina-

ting evidence"). However, as the Schmerber Court went on

to state, "[i]t is clear that the protection of the privilege

reaches an accused's communications, whatever form they

might take, and the compulsion of responses which are also

communications, for example, compliance with a subpoena

to produce one's papers." Id. at 764 (emphasis added).

The rationale underlying the act of production trilogy--

Fisher, Doe I, and Braswell v. United States, 487 U.S. 99

(1988)28--with its emphasis on compelled truthtelling, emerg-

__________

Maurice is irrelevant to our (and any) general Fifth Amendment

analysis. See Dissent at 6-8.

In Bouknight, the Court assumed arguendo that compelled pro-

duction would involve sufficient testimonial incrimination to impli-

cate the Fifth Amendment, see id. at 555--a critical fact our

dissenting colleague ignores. In fact, to the extent that the Court

did touch upon the testimonial components of the act of production,

its minimal discussion reinforces our reading of Fisher and Doe I,

and directly refutes the dissent's. For example, the Court noted

that while producing Maurice would implicitly testify to his exis-

tence and authenticity, that communication was "insufficiently in-

criminating." Bouknight, 493 U.S. at 555. Because the state

already knew of his existence, and presumably his social worker

could testify as to his identity, both elements were essentially a

foregone conclusion. See id. (citing Fisher's foregone conclusion

analysis). See also discussion infra pp. 45-50. The dissent's

extensive effort to distill contrary principles from Bouknight is

misguided and unsubstantiated; Bouknight cannot and does not

bear the meaning that the dissent seeks to assign it.

28 In Braswell, the Court held that a custodian of corporate

records could not evade a subpoena seeking records from his

corporation through asserting his Fifth Amendment privilege

against self-incrimination. Although Mr. Braswell effectively

es directly out of this focus upon whether the state operates

upon a reluctant witness' mental faculties to compel testimo-

ny. See Murphy v. Waterfront Comm'n of New York Har-

bor, 378 U.S. 52, 55 (1964) (rooting the Fifth Amendment

privilege inter alia in "our unwillingness to subject those

suspected of crime to the cruel trilemma of self-accusation,

perjury or contempt ..."); South Dakota v. Neville, 459 U.S.

553, 563 (1983) (same); Curcio v. United States, 354 U.S. 118,

128 (1957) (forcing custodian of union records who lacks

possession to testify as to their whereabouts "requires him to

disclose the contents of his own mind.... That is contrary

to the spirit and letter of the Fifth Amendment."). That is,

the act of producing documents in response to a subpoena

potentially involves the Fifth Amendment's protections pre-

cisely because the subpoenaed party is forced to undertake

some communicative act in answering. See Fisher, 425 U.S.

at 410; Doe I, 465 U.S. at 612. Each of the four potential

statements that adhere to the act of production--existence,

possession, authenticity, and the belief that the produced

documents match the subpoena's terms--can merit protection

because they entail "the extortion of information from the

accused, the attempt to force him to disclose the contents of

his own mind...." Doe II, 487 U.S. at 211 (internal citations

omitted).29 In terms of the dichotomy articulated in Holt and

__________

served as the corporation's sole owner and officer--his wife and

mother were nominal officers so as to satisfy a Mississippi law

requiring corporations to have three directors--he necessarily oper-

ated in a representative capacity, under the "collective entity"

doctrine, in his duties as custodian. See 487 U.S. at 110. When

acting as a corporate agent, the Court held, an individual cannot

assert his personal Fifth Amendment rights; similarly, the act of

production can only be used against the corporation and not against

the custodian. See id. at 118 & n.11.

29 In Doe II, the Court upheld an order compelling the target of a

grand jury investigation to sign a series of consent forms authoriz-

ing banks in the Cayman Islands and Bermuda to disclose records

for any account to which petitioner was a signatory. Since signing

the consent forms did not involve or imply an assertion of fact or a

its progeny, they fall on the side of the communicative and

testimonial.

In assessing the testimonial value of an act of production, it

makes sense to reference the anti-extortion principle which

has become the motivating force of self-incrimination doc-

trine. In light of Fisher, Doe I, and Doe II, we conclude that

the testimonial value varies directly with the quantum of

information that the government seeks to extract through

compelling the expression of the contents of an individual's

mind and inversely with the quantum of information in the

government's possession at the time the relevant subpoena

issues.30 Cf. Muniz, 496 U.S. at 597 ("the cases upholding

compelled writing and voice exemplars did not involve situa-

tions in which suspects were asked to communicate personal

beliefs or knowledge of facts ..."). Although the Supreme

Court has not explicitly stated as much, our conclusion is fully

in accord with, and even helps to explain, the Court's re-

peated statement that the question of whether tacit aver-

ments are sufficiently testimonial as to merit the Fifth

Amendment's protection depends "on the facts and circum-

stances of particular cases or classes thereof."31 Fisher, 425

__________

disclosure of information, the Court concluded that the order did

not run afoul of the privilege against self-incrimination.

30 The former constitutes the more important formulation, as it

ties testimonial value directly to the disparity between the govern-

ment's knowledge and that of the subpoenaed party. It focuses

directly upon the government's need to access the contents of an

individual's mind. By contrast, although the government may have

little information with respect to whether a suspect's DNA or

fingerprints match those of a suspected culprit, and the government

will extract a great deal of information from a blood sample or a

handwriting exemplar, neither probes the contents of one's mind to

compel testimony. Everything of evidentiary value traces to the

body as a source "real," as opposed to communicative, evidence.

31 Our dissenting colleague remarks that "[t]he most confusing

part of Fisher is the language that the courts have taken to tie

'foregone conclusion' closely to the 'testimonial' analysis and vice

versa." Dissent at 3. Because we think that the "foregone conclu-

sion" limitation emerges directly from the logic underlying the act

U.S. at 410; Doe I, 465 U.S. at 613; Braswell, 487 U.S. at

103. Moreover, although our sister courts have undertaken

particular analyses in light of general Fifth Amendment

principles, the conclusions they have reached in individual

cases can largely be reconciled with this formulation.32

__________

of production doctrine, we do not share our colleague's confusion.

Fisher and Doe I state the general proposition that the act of

producing documents in response to government subpoena commu-

nicates. It provides testimony rather than physical or real evi-

dence, and this testimony comes in four recognized forms. See

discussion supra p. 29. However, in that subset of cases in which

the testimonial value of this communication is minimal--exemplified

by Fisher itself--that testimony will not merit the Fifth Amend-

ment's protection. Where the government need not rely upon the

truthtelling of the witness, because it has prior knowledge of the

information that will be communicated through the act of produc-

tion, "no constitutional rights are touched." Fisher, 425 U.S. at 411

(quoting In re Harris, 221 U.S. at 279). Where all that would be

communicated is a "foregone conclusion," "the question is not of

testimony but of surrender." Id.

The foregone conclusion analysis, which examines the testimonial

value of the accused's act of production, has nothing to do with the

general question of whether the act of producing documents in

response to a subpoena is testimonial. Fisher, Doe I, and Braswell

all teach that it is. The Court's discussion of handwriting and blood

samples goes only towards answering this prior question. For

example, while the Court notes that an accused forced to give a

handwriting exemplar implicitly admits that he can write and that

the writing produced is his own, it declares the first admission a

"near truism" and the second "self-evident." Fisher, 425 U.S. at

411. "[A]lthough the exemplar may be incriminating to the accused

and although he is compelled to furnish it, his Fifth Amendment

privilege is not violated because nothing he has said or done is

deemed to be sufficiently testimonial for purposes of the privilege."

Id. (emphasis added). By contrast, the act of production, which is

inherently testimonial, may or may not be sufficiently testimonial

for purposes of the privilege. The Fifth Amendment will not

necessarily apply to all such communications; it "depends on the

facts and circumstances of particular cases or classes thereof." Id.

at 410.

32 Our dissenting colleague contends that these cases can be lined

up in part "because the factual detail of the cases is so skimpy and

In those cases in which our sister circuits have declined to

recognize the existence of a Fifth Amendment privilege, the

government has usually had extensive information regarding

the documents it subpoenaed. While the act of production

would still force an individual to communicate knowledge and

to reveal the contents of his mind, the government would in

no way be relying upon the communication inherent in the

act. It is only in those instances where the gap separating

the government's knowledge with respect to the existence,

possession, location or authenticity of documents from that of

the subpoenaed party is wide that our sister circuits have

recognized a testimonial value sufficient to merit the Fifth

Amendment's protections.

In United States v. Schlansky, 709 F.2d 1079 (6th Cir.

1983), for example, the IRS had issued a highly specific

subpoena reflecting detailed knowledge of the documents it

sought. In particular, the summons asked for the production

of "[a] ring binder containing 8" by 12" sheets (approximate),

3 inches deep, containing cancelled checks, bank statements,

invoices, receipts glued to the accountants worksheets for the

years 1976 and 1977." Id. at 1081. Since the existence of the

binder, its contents, and their possession by Mr. Schlansky

were not in dispute, and since authentication was available

from other sources, the Sixth Circuit concluded that Schlan-

sky's response to the subpoena would not involve testimonial

self-incrimination. The Second Circuit reached a similar

result in United States v. Praetorius, 622 F.2d 1054 (2d Cir.

1979), in which the government had subpoenaed a passport in

relation to its investigation of a heroin importation ring.

Since the court below had found that the existence and

__________

the majority's test so elastic." Dissent at 10. However, as will

become evident from our discussion, the pejorative label "skimpy"

rightly attaches only to the extent of the government's knowledge in

those cases where courts have recognized a valid Fifth Amendment

privilege. In all of the cases we discuss, the factual details are rich

and revealing. While, for the sake of brevity, we have limited our

recounting to a relevant summary, we refer our colleague's atten-

tion to the appropriate pages in the federal reporter.

location of the passport were not in question, the Second

Circuit affirmed its conclusion that the act of production did

not have sufficient testimonial value to implicate the Fifth

Amendment. See id. at 1063.

In re Steinberg, 837 F.2d 527 (1st Cir. 1988), and United

States v. Clark, 847 F.2d 1467 (10th Cir. 1988) also fall within

the pattern of cases in which the government's knowledge is

nearly on par with that of the subpoenaed individual. In

Steinberg, the government sought a series of notebooks main-

tained by members of Lyndon LaRouche's security staff in

which they detailed the progress of a federal investigation

into LaRouche's 1984 Presidential campaign as well as the

staff's internal planning measures. As a government witness

had testified to the existence and contents of the notebooks,

as well as to Steinberg's possession, the court found that the

subpoena did not implicate the Fifth Amendment. Steinberg,

837 F.2d at 530. In Clark, an IRS summons sought accoun-

tant's work papers and the personal records that the taxpayer

had given his accountant, both of which were known to have

subsequently been given to the taxpayer's attorney. Finding

the existence of the work papers to be a foregone conclusion,

and that the underlying records would be reflected therein,

the Tenth Circuit refused to recognize a Fifth Amendment

privilege. See 847 F.2d at 1472-73. See also United States v.

Stone, 976 F.2d 909, 911 (4th Cir. 1992) (in Department of

Energy investigation into relationship between department

employees and owner of business receiving DOE contracts,

where government knew that appellant owned a beach house

and had sufficient knowledge that he rented the house out

between 1983 and 1989 to request a list of renters, subpoena

seeking utility bills and rental records targets documents

whose existence and possession are a foregone conclusion);

In re Grand Jury Subpoena Duces Tecum Dated Oct. 29,

1992, 1 F.3d 87 (2d Cir. 1993) (where defendant has testified

before SEC as to possession and use of diary, and has

previously turned over a copy in which government suspects

adulteration, subpoena for original does not implicate Fifth

Amendment).

By contrast, those cases in which our sister courts have

recognized a Fifth Amendment privilege consistently reveal a

gross information asymmetry between the government and

the subpoenaed party, which can be bridged only by getting

at the contents of the latter's mind. In United States v. Fox,

721 F.2d 32 (2d Cir. 1983), the IRS issued a wide ranging

subpoena seeking an expansive array of personal, financial

and business records of Dr. Martin Fox. At the time, the

IRS had copies of his 1979-1981 tax returns and a transcript

of third-party payments to the Foxes during 1979. Rejecting

the government's contention that the testimonial value of

producing the subpoenaed documents would be minimal, the

court reasoned that in seeking all of the books and records of

the Fox's sole proprietorship, the government had attempted

"to compensate for its lack of knowledge by requiring Dr. Fox

to become the primary informant against himself." Id. at 38.

Since the IRS could establish neither the existence nor the

authenticity of the records sought, its subpoena implicated

the Fifth Amendment's protections. In re Grand Jury Pro-

ceedings on February 4, 1982, 759 F.2d 1418 (9th Cir. 1985)

involved a similarly broad subpoena, demanding personal

journals, files related to the purchase of fishing boats, stock

transactions, and receipts. Reasoning that the production of

documents belonging to and prepared by the subpoenaed

party would relieve the government of the need to establish

their existence, possession and authenticity, the court held

that the act of production would be sufficiently testimonial to

require protection if incriminating. See id. at 1421. Finally,

in In re Grand Jury Proceedings, Subpoenas for Documents,

41 F.3d 377 (8th Cir. 1994), the government subpoenaed all of

appellants' original records from any business in which they

owned an interest as well as all evidence of their financial

transactions for a four-year period. Noting that the subpoe-

na did not describe the requested documents in specific

terms, the court found that the government had failed to

establish an independent source of authentication. Focusing

on the discretionary judgments involved in responding to a

subpoena, the court pointedly remarked that "the broader,

more general, and subjective the language of the subpoena,

the more likely compliance with the subpoena would be

testimonial." Id. at 380.

Although the fit is by no means perfect, the cases assessing

the testimonial value of an act of production form a pattern

that correlates strongly with the government's need to draw

from the mental faculties of the responding party. Where

the information asymmetry is large, and where the govern-

ment's prior knowledge is minimal, the act of production will

likely communicate either the existence, possession or authen-

ticity of the subpoenaed documents.

ii. Assessing the Government's Knowledge

The case at bar highlights a further doctrinal ambiguity,

which is again tied to elaborating the extent of knowledge

that the government must have in order to justify a conclu-

sion that the communicative aspects of the act of production

are a "foregone conclusion" under Fisher and Doe I. Re-

hearsing an argument discussed above, the Independent

Counsel contends that government knowledge of the exis-

tence and possession of documents should be assessed solely

through examining categories or classes of documents. While

it thus argues that the court should measure whether the

information sought through a subpoena is a foregone conclu-

sion at a high degree of abstraction--speaking in generalized

terms of business, financial and tax records--the Independent

Counsel provides no support for its contention. Moreover,

any instruction to filter review of the government's knowl-

edge through categories is inherently an empty one, for it

fails to address the recurring level of generality problem.

See generally, Laurence H. Tribe & Michael C. Dorf, Levels

of Generality in the Definition of Rights, 57 U. Chi. L. Rev.

1057 (1990) (discussing the malleability and outcome-

determinative nature of levels of generality); Michael H. v.

Gerald D., 491 U.S. 110 (1989) (discussing the appropriate

level of generality at which to define fundamental rights).

While a useful method of sorting information, categories do

not present themselves as Platonic forms with inherent shape

or universal meaning. Rather, defined by reference to their

particular applications, they can be abstracted upwards or

downwards (through varying levels of generality) in order to

embrace or reject concrete instances. See generally Ludwig

Wittgenstein, Philosophical Investigations (G.E.M. An-

scombe trans., 3d ed. 1968) at ss 137-242 (general concepts

do not dictate their concrete applications, but rather are

defined through them). As Doe I well illustrates, the govern-

ment cannot simply subpoena business records and then claim

the requisite knowledge for purposes of the Fifth Amendment

by pointing to the existence of a business.33 The Independent

__________

33 Nor can the government obtain documents by compelling their

production, and then claim that the act of production was insuffi-

ciently communicative to merit the Fifth Amendment's protection

because the papers themselves provide independent evidence of

their own existence. Where the government had no information as

to their potential existence prior to the compelled response, its a

posteriori knowledge is inextricably linked with the communicative

testimony inherent in the subpoena response.

The dissent attempts to differentiate two concepts of existence,

only the first of which it claims to be covered by the Fifth

Amendment. In the dissent's view, the existence prong of Fisher

refers only to the statement, made in a given act of production, that

"Yes, these are the records you described in the subpoena." Dis-

sent at 5. It differentiates this definition of existence from the

more sweeping view that connotes "in being," id., claiming that the

latter definition is somehow foreclosed by Schmerber, Wade, and

Gilbert. The dissent's reading falters on two separate grounds.

First, and most important, it is explicitly contradicted by Fisher,

Doe I, and Braswell. In each case, the Supreme Court concluded

that the act or production "tacitly concedes the existence of the

papers demanded and their possession or control by the taxpayer.

It also would indicate the taxpayer's belief that the papers are those

described in the subpoena." Fisher, 425 U.S. at 410 (emphasis

added); Doe I, 465 U.S. at 613; Braswell, 487 U.S. at 103. The

statement which follows the word "also" corresponds directly with

the dissent's interpretation of the word existence. However, the

court states what has become known as the "authenticity" prong

separate from its recognition that the act of production communi-

cates the existence of the documents sought in a subpoena. As far

as we can tell, our dissenting colleague offers the first opinion

attempting to read the existence prong of Fisher, reiterated in Doe

Counsel's assertion that its knowledge of Hubbell's status as

a consultant and a taxpayer carried with it a concomitant

awareness of the existence and possession of his consulting

and tax records similarly falls short. The Fifth Amendment's

proscription against compelled self-incrimination does not

hinge on tautology.

The basic problem with the Independent Counsel's conten-

tion is that it fails to recognize that there are no essential

classes or categories of information. While the Independent

Counsel attempts to argue that ordinary business, financial

and tax records are the appropriate categories through which

to assess Hubbell's act of production, other courts have

utilized those terms in a different capacity. The Eighth

__________

I and Braswell, out of existence. We reject this attempt to render

an independent part of the Fisher analysis redundant.

Ignoring the text of Fisher, Doe I, and Braswell, the dissent

seeks support for its parsimonious definition through a misconstruc-

tion of Schmerber, Wade, and Gilbert. It argues that existence qua

existence "is as 'self-evident' as the blood and its characteristics in

Schmerber, the voice samples and their characteristics in Wade, and

the handwriting and its characteristics in Gilbert." Dissent at 5.

Our dissenting colleague fails to recognize, however, the legal

import of the fact that all humans have blood and that nearly all can

speak and write. In each case, the Supreme Court relied upon this

self-evident quality to conclude that requiring the accused to pro-

vide a sample merely required the use of his body as physical

evidence. They were analogous to a "compulsion to submit to

fingerprinting, photographing, or measurements ..., to appear in

court, to stand, to assume a stance, to walk, or to make a particular

gesture," Schmerber, 384 U.S. at 764, because in each case they

were considered noncommunicative or insufficiently testimonial.

See discussion supra pp. 39-43. The Supreme Court relied upon

this distinction between "compelling 'communications' or 'testimo-

ny' " and compulsion that "makes a suspect or accused the source of

'real or physical evidence,' " id., in articulating the communicative

elements of the act of production. It concluded that a compelled

subpoena response testified to existence qua existence. According-

ly, we refuse to join our dissenting colleague's attempt to overturn

the holding articulated in Fisher, and reiterated in both Doe I and

Braswell.

Circuit in Rue, for example, used the term to reference the

various paragraphs of the subpoena in question, see Rue, 819

F.2d at 1490, while the Sixth Circuit has utilized it as an

open-ended device for classifying different levels of govern-

ment knowledge. See Butcher v. Bailey, 753 F.2d 465, 470

(6th Cir. 1985) (inviting the district court to break its assess-

ment of the government's knowledge down into whatever

document categories it sees). The level of generality problem

arises precisely because these questions "do not lend them-

selves to categorical answers" and "may instead depend on

the facts and circumstances of particular cases or classes

thereof." Fisher, 425 U.S. at 410; Doe I, 465 U.S. at 613.

Recognizing that the inquiry will always be highly contex-

tual and fact-intensive, we agree with the Second Circuit that

the government must establish its knowledge of the existence,

possession, and authenticity of subpoenaed documents with

"reasonable particularity" before the communication inherent

in the act of production can be considered a foregone conclu-

sion.34 See In re Grand Jury Subpoena Duces Tecum, 1 F.3d

__________

34 The dissent would discredit our holding by asserting that "the

operational meaning of the 'act of production' doctrine in our circuit

will largely turn on district courts' discretion in this metaphysical

classification of prosecutors' knowledge." Dissent at 10. We do

not share the dissent's disdain for factual inquiries into the extent of

a government official's knowledge, which forms a large part of

ordinary judicial decision-making. Under the Fourth Amendment,

for example, the probable cause determination with respect to both

arrests and searches depends upon an assessment of the govern-

ment's knowledge as to the likelihood that a suspect has committed

a crime or that incriminating items will be in a particular place.

Similarly, district judges weigh the validity of a Terry stop, see

Terry v. Ohio, 392 U.S. 1, 21-24 (1968), by assessing whether a

police officer had reasonable articulable suspicion that the suspect

was potentially involved in criminal activity. A search for weapons

incident to a Terry stop is also assessed for whether the officer had

a reasonable, particularized suspicion that the individual was armed.

See Alabama v. White, 496 U.S. 325, 330 (1990) ("Reasonable

suspicion ... is dependent upon both the content of information

possessed by police and its degree of reliability."). To the extent

that any assessment of the government's knowledge requires some-

87, 93 (2d Cir. 1993). In making this assessment, though, the

focus must remain upon the degree to which a subpoena

"invades the dignity of the human mind," Doe II, 487 U.S. at

219-20 n.1 (Stevens, J., dissenting) and on the quantum of

information as to the existence, possession, or authenticity of

the documents conveyed via the act of production.

In the proceedings below, the court's Fisher/Doe I analysis

led it to conclude that Hubbell's compelled act of production

required him to make communications as to the existence,

possession and authenticity of the subpoenaed documents.

However, when articulating these factual findings as to the

Independent Counsel's knowledge of the documents' exis-

tence--as is proper under Fisher and Doe I--the district

court improperly conflated this Fisher/Doe I inquiry with the

conceptually separate and temporally subsequent Kastigar

inquiry.35 See Hubbell, 11 F. Supp. 2d at 36 ("The assertion

of counsel does not begin to show that the independent

counsel's knowledge of the documents or their contents was a

'foregone conclusion' "); id. at 37 n.15 ("The 'existence' prong

of the Fisher analysis goes to the existence of the information

contained in the documents, not to the fact that the witness

keeps records."). Since the Fifth Amendment only touches

the testimonial aspects of a subpoena response, the district

court should have independently examined the extent of the

government's knowledge as to the existence, possession or

control, and authenticity of the subpoenaed documents--i.e.,

the testimonial components of the act of production. The

inquiry should have focused upon whether the government

knew that the documents existed at all, and not upon whether

the government knew of the existence of the information

contained therein. See id. at 35 ("The independent counsel

does not claim that he knew any of the facts relevant to the

charges in this indictment at the time of the subpoena")

(emphasis in original). Only the former is communicated

through the act of production itself.

__________

thing in the nature of a "metaphysical classification," we have no

doubt that the district courts are up to the task.

35 Kastigar is discussed infra pp. 59-64.

As the district court's fact findings relevant to the

Fisher/Doe I inquiry are inextricably linked with its assess-

ment of the government's substantive knowledge of the al-

leged offenses, we cannot decide on the record before us

whether Hubbell's act of production had sufficient testimonial

value to invoke the Fifth Amendment's protections. The

subpoena speaks in vague terms, and the detail with which it

goes through the possible forms that the information sought

could take, see supra note 12, at the very least hints that the

government had no knowledge as to whether Hubbell main-

tained comprehensive records of the way he allocated his

time. Moreover, it is unclear how the Independent Counsel

became apprized of the Pulaski bank account, the three trust

accounts, the Bridgeport Group, the check swap, and Hub-

bell's early withdrawals from his IRA accounts, each of which

figure prominently in the indictment.36 See discussion supra

pp. 25-26. The Bridgeport Group had not been organized, its

account at the Pulaski Bank had not been opened, and

Hubbell had neither signed a book contract with William

Morrow and Company, Inc., nor received his advance on the

day the subpoena issued. The extent of the Independent

Counsel's knowledge of Hubbell's recordkeeping practices is

also uncertain. On remand, the district court should hold a

hearing in which it seeks to establish the extent and detail of

the government's knowledge of Hubbell's financial affairs (or

of the paperwork documenting it) on the day the subpoena

issued. It is only then that the court will be in a position to

__________

36 According to the district court, the Independent Counsel con-

ceded in oral argument that it "learned of the Bridgeport Group,

the ['for the benefit of'] account at Pulaski County Bank, and the

'pension account check swap' charged in the indictment only

through the documents." Hubbell, at 35. By contrast, the Inde-

pendent Counsel asserts that it discovered the account and the

check swap through interviews with and documents produced by

Michael Schaufele, the Rose Law Firm, and financial institutions.

See Appellant's Br. at 44-45 n.9. On remand, the Independent

Counsel bears the "heavy burden" of demonstrating a source of

knowledge completely independent from and untainted by the com-

pelled act of production. See Kastigar, 406 U.S. at 461-62; Bras-

well, 487 U.S. at 117.

assess the testimonial value of Hubbell's response to the

subpoena. Should the Independent Counsel prove capable of

demonstrating with reasonable particularity a prior aware-

ness that the exhaustive litany of documents sought in the

subpoena existed and were in Hubbell's possession, then the

wide distance evidently traveled from the subpoena to the

substantive allegations contained in the indictment would be

based upon legitimate intermediate steps. To the extent that

the information conveyed through Hubbell's compelled act of

production provides the necessary linkage, however, the in-

dictment deriving therefrom is tainted.

c. The Question of Incrimination

Under the third prong of the Fisher and Doe I analysis,

compelled testimony must be incriminating before it merits

Fifth Amendment protection. See Fisher, 425 U.S. at 409

("the privilege protects a person only against being incrimi-

nated by his own compelled testimonial communications").

The mere assertion of the privilege by the party whose

testimony the government seeks is insufficient; "his say-so

does not of itself establish the hazard of incrimination. It is

for the court to say whether his silence is justified." Hoff-

man v. United States, 341 U.S. 479, 486 (1951). With respect

to a subpoena for documents, the privilege cannot be invoked

merely because the subpoenaed items contain incriminating

information; the act of production must communicate and

incriminate. See Fisher, 425 U.S. at 410. To have "an

incriminating effect," Doe I, 465 U.S. at 612, the party

claiming the privilege must be "confronted by substantial and

'real,' and not merely trifling or imaginary, hazards of incrim-

ination." Id. at 614 n.13 (citations omitted). See also Butch-

er v. Bailey, 753 F.2d at 470 (showing that document produc-

tion would incriminate "will be sufficient if the court can, 'by

the use of reasonable inference or judicial imagination, con-

ceive a sound basis for a reasonable fear of prosecution' ")

(quoting In re Morganroth, 718 F.2d 161, 169 (6th Cir. 1983)).

Breaking the act of production down into its individual

testimonial components, the Independent Counsel argues that

an admission of either the existence or possession of "ordi-

nary" business and financial records can almost never be

incriminating. Similarly, the implicit authentication of docu-

ments would only incriminate were a subpoena to be phrased

in such a way as to expressly request production of the

instruments of criminality. We disagree, as both logic and

Supreme Court precedent rebut the claims of any such nig-

gardly interpretation. First, the Fifth Amendment's protec-

tions cannot depend upon such trivial semantic distinctions

that the government can sidestep its application by request-

ing "all income records" instead of "all incriminating income

records." Artful phrasing does not suffice. Moreover, Doe I

and Doe II belie such a narrow reading of the Fifth Amend-

ment's protections. In Doe I, the Supreme Court found, on

the basis of the findings presented, that Doe faced a "real and

substantial" risk of incrimination were he to produce the

documents sought in the government's subpoena-a subpoena

seeking ordinary business records, not "incriminating" busi-

ness records. See 465 U.S. at 614 n.13. As the government

had no independent knowledge of the existence or his posses-

sion of the documents listed in the subpoenas at issue, and

since the act of production would tacitly admit their existence

and his control over them, and provide a source of authentica-

tion, the court found the threat of incrimination to be "clear."

See id. A cursory comparison of the subpoena at issue in Doe

I with that of the case at bar reveals marked similarities, see

id. at 607 n.1, and we think it equally clear that Hubbell faced

a real and substantial threat of incrimination in responding.

It is hard to divine another reason why the Independent

Counsel would have sought an order of immunity in the first

place.

Doe II's discussion of the incrimination requirement rein-

forces our conclusion. Although the decision in Doe II turned

on the question of whether signing a general release form

involved an assertion of fact, the Court also discussed the

proper shape of the incrimination inquiry. The Kastigar

Court, it argued, "implicitly concluded that the privilege

prohibits 'the use of compelled testimony, as well as evidence

derived directly and indirectly therefrom.' 406 U.S. at 453.

The prohibition of derivative use is an implementation of the

'link in the chain of evidence' theory for invocation of the

privilege, pursuant to which the 'compelled testimony' need

not itself be incriminating if it would lead to the discovery of

incriminating evidence." Doe II, 487 U.S. at 208 n.6.

In the present case, it appears that Hubbell's testimony

likely involved both direct and indirect incrimination. Ac-

knowledging the existence of an interest-bearing checking

account the income from which the subpoenaed party had

failed to report on his tax returns would directly incriminate;

it would inform the government of a known source of unre-

ported income. See United States v. Argomaniz, 925 F.2d

1349, 1354 (11th Cir. 1991) (where defendant failed to file tax

returns for a series of years, admitting the existence of

documents relating to income through production would es-

tablish essential elements of criminal failure to file a tax

return). If Hubbell had records of that account in his

possession or control, that fact could further incriminate. See

Smith v. Richert, 35 F.3d 300, 304 (7th Cir. 1994) (as the

mere turning over of 1099s and W-2s in response to a

subpoena could eliminate defense of lack of knowledge or

possession, it is incriminating). Similarly, in acknowledging

the existence of the Bridgeport Group and its bank account at

Pulaski Bank, Hubbell provided a link in the chain of evidence

used by the Independent Counsel to substantiate the criminal

charges against him--an instance of indirect incrimination.

Given the procedural posture of this case, it would be

premature for us to review the incrimination question any

further at this juncture. Until the district court determines

on remand precisely what testimony Hubbell provided

through his act of production, focusing on the extent of the

government's knowledge as of the date of the subpoena and

on whether Hubbell's testimony added "to the sum total of

the government's case against him," United States v. Edger-

ton, 734 F.2d 913, 921 (2d Cir. 1984) (quoting Fisher, 425 U.S.

at 411), it cannot make the appropriate fact findings as to

what extent that testimony is incriminating. See Doe I, 465

U.S. at 614 (whether a compelled act of production is incrimi-

nating is a question of fact). In conducting this inquiry, the

district court should be guided, as the Supreme Court coun-

seled in Hoffman v. United States, 341 U.S. at 487, by its

particular perceptions of the specific and unique facts of the

case.

d. The Upshot of Immunity

A grant of statutory immunity under 18 U.S.C. ss 6002,

6003, extends as far as the Fifth Amendment privilege it

supplants. It "leaves the witness and the prosecutorial au-

thorities in substantially the same position as if the witness

had claimed the Fifth Amendment privilege," and is "coexten-

sive" with the Fifth Amendment's protections. Kastigar, 406

U.S. at 462. Since the district court erred in assessing the

testimonial value of Hubbell's document production, it con-

ducted its inquiry into the effect of Hubbell's statutory immu-

nity against a faulty backdrop. On remand, the court should

assess the impact of the immunity order in light of its new

fact findings with respect to the government's prior knowl-

edge and the quantum of information it extracted from "the

state of mind, memory, perception, or cognition of the wit-

ness." Braswell, 487 U.S. at 126 (Kennedy, J., dissenting).

Although this inquiry will be fact-intensive, the district court

should bear in mind Kastigar's teaching that "a grant of

immunity must afford protection commensurate with that

afforded by the privilege, [although] it need not be broader."

406 U.S. at 453. The precise contours of Hubbell's Fifth

Amendment rights, therefore, will be dispositive.

Intervening in this case, the United States, acting through

the Attorney General, has proffered a particular reading of

the Fifth Amendment's intersection with compelled produc-

tion which we believe merits some discussion. Like the

Independent Counsel, the United States draws a sharp dis-

tinction between the testimonial components of the act of

production and the contents of those documents, essentially

ruling out the possibility that the prohibition on the direct or

indirect use of a party's compelled testimony could extend to

reach the contents of the documents he turns over. Instead,

it invites the court to compare what the government learns

from the act of production with what it would know if the

documents in question just appeared on its doorstep. That

intellectual exercise, it argues, separates the information con-

veyed through the act of production with what could be

deciphered from the records themselves. See Intervenor's

Br. at 42; Dissent at 11. Since Kastigar instructs that the

government can introduce the fruits of immunized testimony

provided that it can meet "the heavy burden of proving that

all of the evidence it proposes to use was derived from

legitimate independent sources," 406 U.S. at 461-62, the

documents themselves can serve as that independent source

of the information communicated by their production. Pro-

vided that the government does not mention the mechanics

through which it obtained those documents, and that the

documents are sufficiently self-explanatory and self-

referential to establish their own nexus with the defendant,

the government would be free to use the subpoenaed docu-

ments in making its case against the defendant.37 We dis-

agree.

Although the Fisher Court observed that "[t]he 'implicit

authentication' rationale appears to be the prevailing justifica-

tion for the Fifth Amendment's application to documentary

subpoenas," 425 U.S. at 412 n.12, the Court explicitly and

repeatedly acknowledged that the act of production also

communicates existence and possession. See id. at 412; Doe

I, 465 U.S. at 613; Doe II, 487 U.S. at 209; Braswell, 487

U.S. at 103. The analytic tool offered by the United States,

however, reads both of these testimonial components out of

existence. While the government may be able to establish

the authenticity of the documents independently, whether in

terms of their own self-reference or the testimony of a

witness familiar with them, the magical appearance of the

__________

37 The Independent Counsel has made a similar argument, claim-

ing that it has not and will not trample Hubbell's Fifth Amendment

rights because it has no need to introduce Hubbell's actual docu-

ments at trial. Accordingly, the Independent Counsel asserts that

it can obviate Hubbell's testimony as to the existence, possession,

control, and authenticity of the subpoenaed documents. See Appel-

lant's Br. at 12 ("the government has made no use of Mr. Hubbell's

act of production in the course of developing the charges in the

indictment.").

documents obviates the need for prior knowledge that the

documents actually exist. Yet "Kastigar does not prohibit

simply 'a whole lot of use,' or 'excessive use,' or 'primary use'

of compelled testimony. It prohibits 'any use,' direct or

indirect." United States v. North, 910 F.2d 843, 861 (D.C.

Cir. 1990). Once the documents appear and are examined,

such that their existence enters the consciousness of the

prosecutor, the United States has offered no means through

which the government can establish that its evidence "is not

directly or indirectly derived from such testimony" as to their

existence. United States v. North, 920 F.2d 940, 946 (D.C.

Cir. 1990) (emphasis in original).

The intellectual exercise suggested by the Justice Depart-

ment and embraced by our dissenting colleague, see Dissent

at 11, essentially eviscerates the act of production doctrine, as

well as the Fifth Amendment protection it secures. To offer

a counter-hypothetical, assume that the government grants

immunity to a murder suspect, compelling him to incriminate

himself verbally. Under compulsion, the accused admits that

he stabbed the victim, and that he buried the murder weapon

in a particular place that would not have been discovered

through any alternative line of government investigation.

When the police go to this remote location, they find a knife.

Forensic testing reveals it not only to be the murder weapon,

but also to contain blood stains and a set of fingerprints that

match our suspect's. Would we allow a prosecution to be

based on the incriminating knife, under our colleague's "man-

na from heaven" scenario, by assuming that it miraculously

appeared in the district attorney's office? Could it be used as

evidence so long as no-one testified as to how they learned of

its whereabouts? Once the accused has already directed the

government to the knife, should we limit his Fifth Amend-

ment privilege by hypothesizing after the fact--as an intellec-

tual exercise--that the knife could have been linked to the

accused because of the blood or fingerprints on it, or because

the prosecutor conceivably could have received an anonymous

report describing the location of the weapon? Could the

prosecutor, consistent with the Fifth Amendment, bring

charges based upon any independent linkage between the

weapon and the accused that it can divine after the fact? The

questions answer themselves. They also rebut the theory of

the act of production doctrine proffered by the Justice De-

partment and the dissent. Since the Self-Incrimination

Clause has always been understood to refer to testimony in

all of its forms, whether communicated by voice or through

physical acts, see Doe II, 487 U.S. at 209-10 n.8 ("Petitioner

has articulated no cogent argument as to why the 'testimonial'

requirement should have one meaning in the context of acts,

and another meaning in the context of verbal statements.");

Muniz, 496 U.S. at 595 n.9 (definition of testimonial communi-

cation "applies to both verbal and nonverbal conduct"), the

protection it accords to verbal communications must extend to

the testimony conveyed through a compelled act of produc-

tion.38

Now suppose a variation of our hypothetical, in which the

police discover a victim's body in the basement of a large

apartment building, and an autopsy establishes stabbing to be

the cause of death. Lacking any clues, a grand jury issues a

subpoena to every resident in the building, asking each to

produce "all knives and other forms of cutlery that are now,

or in the preceding month have been, in your possession or

control." The residents object en masse, asserting inter alia

their Fifth Amendment privilege against self-incrimination.

After the prosecutor obtains an order compelling production

and granting immunity to the maximum extent allowed by

law, the residents comply with the subpoena. Among the

recovered knives, the police discover the murder weapon.

The prosecutor indicts its owner for murder. The defendant

__________

38 Our dissenting colleague recognizes that the weapon is the

tainted fruit of immunized oral testimony, see Dissent at 11, the

inevitable conclusion under settled law that we constructed our

hypothetical to reflect. The taint remains, however, regardless of

whether the knife can be independently linked back to the accused

by some stretch of the imagination. The dissent's post hoc "manna

from heaven" scenario cannot purge it. Where the government

makes the same use of compelled document production, depending

on the facts and circumstances of the particular case, those docu-

ments can be equally tainted.

moves to dismiss the indictment, claiming that his immunized

subpoena response testified as to the existence, his posses-

sion, and the authenticity of the knife he produced. Having

handed the government the murder weapon, and provided the

explicit link between it and himself, can the accused neverthe-

less be prosecuted consistent with the Fifth Amendment

provided that the government finds some independent way to

link him with the knife? If our protagonist has once again

left behind fingerprints and traces of his blood, could they be

used as evidence, together with the knife, so long as no one

testified as to the means of recovery? In the scenario we

paint, where the government had no evidentiary knowledge

independent of that derived, directly and indirectly, from

testimony communicated through compelled production, Fish-

er, Doe I, Doe II, Kastigar and Braswell clearly repudiate

any attempt to do so. They collectively teach that the scope

of the Fifth Amendment's protection cannot be measured by

merely imagining that our knife appeared, like manna from

heaven, in the grand jury room.

In a case such as the present one, in which the govern-

ment's knowledge of the existence or possession of the exten-

sive documentation sought via subpoena appears scant at

best, the United States' hypothetical about finding the papers

on its doorstep fails to capture the true nature of the Fifth

Amendment's protection against the government probing the

mind of an accused in order to ascertain evidence it can use to

convict him. Where the testimonial value of document pro-

duction is high, and the government obtains a large quantum

of information directly from the witness' mental faculties, the

government labors under "a heavy burden of proving that all

evidence it seeks to introduce is untainted by the immunized

act of production." In re Sealed Case, 791 F.2d 179, 182

(D.C. Cir. 1986) (internal citations omitted). If the govern-

ment did not have a reasonably particular knowledge of

subpoenaed documents' actual existence, let alone their pos-

session by the subpoenaed party, and cannot prove knowledge

of their existence through any independent means, Kastigar

forbids the derivative use of the information contained therein

against the immunized party. See 406 U.S. at 453 ("Immuni-

ty from the use of compelled testimony, as well as evidence

derived directly and indirectly therefrom, ... prohibits the

prosecutorial authorities from using the compelled testimony

in any respect, and it therefore insures that the testimony

cannot lead to the infliction of criminal penalties on the

witness."). Accordingly, should the Independent Counsel

prove unable to meet the requisite evidentiary burden, the

contents of those documents will be inadmissible. See Sealed

Case, 791 F.2d at 182 ("Thus, if in fact appellee's privilege in

the act of production cannot be protected without excluding

the contents of the tapes (a point on which we express no

opinion) the District Court has the authority to prevent the

government from referring to or introducing those con-

tents.").

"The decision to seek use immunity necessarily involves a

balancing of the Government's interest in obtaining informa-

tion against the risk that immunity will frustrate the Govern-

ment's attempts to prosecute the subject of the investigation."

Doe I, 465 U.S. at 616. Unless the Independent Counsel can

establish its knowledge of the existence and possession of the

documents sought in the subpoena with greater detail and

particularity, it will have to live with the consequences of its

decision to compel production.

III. Conclusion

For the reasons above, we vacate the district court's judg-

ment and remand for further proceedings in light of this

decision.

So ordered.

Wald, Circuit Judge, concurring in Part I: I believe that a

reasonable construction of the original mandate shows that it

is "demonstrably related" to the tax evasion and asset con-

cealment prosecutions in dispute here. That, however, is only

because, as the panel opinion makes clear, at least some of

the consulting monies Hubbell received in the years 1994-

1997 may have been tainted as hush money. "The timing,

sources, and extent of the payments make the belief that they

were hush money reasonable." Panel Opinion ("Panel Op.")

at 20. Thus, manipulation of all monies received during that

period may have been related to the concealment of any

tainted money--money, that is, received in return for ob-

structing the Independent Counsel's Whitewater investiga-

tion. Panel Op. at 15-18. In the face of these circumstances,

I disagree with the dissent's conclusion that the Independent

Counsel's failure to bring an indictment on the hush money

allegations, either first or contemporaneous with the tax

violations, means that no "credible evidence" of any wrongdo-

ing exists. Dissenting Opinion ("Diss. Op.") at 16-17.

The simple fact that no prior or simultaneous indictment

for obstruction was brought down specifically alleging that

monies were received as a quid pro quo for noncooperation in

the main Whitewater matter does not compel a conclusion

that the tax evasion and asset concealment charges are not

related to the original subject matter. It would, in my view,

be unreasonable to require the Independent Counsel to bring

authorized prosecutions in any special order or sequence

provided that they are undertaken and continued only so long

as the "relatedness" requirement remains satisfied. I believe

such a standard may be inferable from the panel opinion,

Panel Op. at 18, but I wish to make clear here my own view

that at the point that the Independent Counsel is no longer

diligently pursuing his investigation of the main allegation

that money was channeled to Hubbell for noncooperation or

misleading testimony, with a reasonable expectation that it

will prove fruitful, the other ancillary claims of manipulation

or failure to report taxes cease to be "demonstrably related"

to the original mandate. It is not enough that the Indepen-

dent Counsel could at one time state a reasonable belief that

the underlying obstruction allegations were true. In my

view, the underlying investigation into the hush money charge

must have been ongoing, and there must have been credible

evidence that the underlying offense did indeed occur at the

time the ancillary indictment was filed. To the extent that

prosecution for the obstruction offense was not practicable at

the time of the tax indictments, whether because the main

investigation had yet to be completed, or because the Inde-

pendent Counsel believed that evidentiary problems limited

the prospects of obtaining a conviction on the obstruction

offense at that moment, the Independent Counsel would still

have jurisdiction over the ancillary charges, provided that

credible evidence remained to substantiate its belief that the

obstruction crime had been committed. However, if at some

point during the investigation it becomes apparent that this

belief is unfounded, then at that time the ancillary counts

should be passed over to the Justice Department to screen

and, if appropriate, to prosecute. That does not, however,

appear to be the case here--we were assured at oral argu-

ment by the Independent Counsel himself that the main hush

money investigation was not closed, and if there is any reason

to believe that it is a dead letter at the time the indictment

for ancillary tax matters was brought (or even when it is

reinstated on remand here), then a hearing (in camera if

necessary) by the district judge on the issue would be appro-

priate. But assuming, as we must on the record before us,

that the principal investigation into possible obstruction was

alive at the time the ancillary tax indictments were brought

and remains so, I cannot but conclude that the tax indict-

ments were related to the main endeavor for the reasons set

out in the panel opinion.1 Panel Op. at 15-18.

__________

1 Although the dissent challenges the notion that these tax eva-

sion indictments would have been proper even if there had been a

simultaneous prosecution for taking hush money, but see Oral Arg.

Tr. at 41, 43-44 (defense counsel endorsing simultaneous prosecu-

tion), I do not see how that argument can be maintained. The

original mandate, as required by 28 U.S.C. s 593(b)(3), granted the

Independent Counsel jurisdiction to investigate and prosecute ob-

struction of its primary investigation. When inquiring into whether

Finally, while I do believe that some deference is due the

Special Division's interpretation of these prosecutions as re-

lated to the original one, I would not find it necessary under

the facts here to decide if the appropriate level of deference is

substantial, Panel Op. at 7, or only due deference. I do not

find the agency analogy particularly persuasive, but on the

other hand I believe that the responsibilities of the Special

Division under the statute to define the Independent Coun-

sel's jurisdiction initially, and subsequently to assess requests

for the referral of related matters, strongly militate toward

some deference; the degree of deference due will likely

depend on the circumstances of each case. The extent of that

deference might shift according to whether the Special Divi-

sion's relatedness determination is grounded particularly on

facts made known to it by the Independent Counsel or the

Attorney General or on a legal or conceptual conclusion that

the offenses or persons are sufficiently related to the original

__________

Hubbell had received hush money in return for noncooperation, the

Independent Counsel had jurisdiction to investigate the likely con-

cealment of any such payments. As tax evasion constitutes a logical

part of any effort to evade the detection of illicit funds, the

Independent Counsel legitimately focused his attention in that

direction. Whatever Hubbell's subjective motivation for not report-

ing income might have been, tax evasion is an inherently concealing

activity. To the extent that Hubbell failed to report consulting fees

alleged to be hush money, he obstructed the obstruction investiga-

tion. Provided that the underlying investigation was still actively

being pursued, the Independent Counsel accordingly had jurisdic-

tion to investigate and prosecute Hubbell's acts of concealment.

The dissent suggests, however, that this court, in order to assure

that the Independent Counsel's investigation had actually unearthed

evidence of obstruction, should have taken up the Independent

Counsel's proffer to view evidence relating to the "hush money"

allegations in camera. Diss. Op. at 17. Aside from the fact that

one of the defense counsel explicitly denounced such a course at

oral argument, see Oral Arg. Tr. at 41, that inquiry would be more

appropriately conducted by the district court when adjudicating a

motion to dismiss the indictment for unrelatedness on this ground.

mandate. At any rate, I think the relatedness requirement is

satisfied here under either standard of deference.

Tatel, Circuit Judge, dissenting from Part I:

This court today concludes that the indictment of Webster

Hubbell for failing to pay taxes on income earned in Washing-

ton, D.C., in 1994 "arises out of" or "relates to" the Indepen-

dent Counsel's investigation of various Arkansas land transac-

tions in the mid-1980s known as Whitewater. Because this

result expands independent counsel authority at the expense

of the Executive Branch, I believe it violates the constitution-

al principle of separation of powers. By deferring to the

Special Division and by adopting virtually limitless theories of

"relatedness," the court fails to police the boundaries that

Morrison v. Olson deemed essential to the constitutionality of

the independent counsel statute. See 487 U.S. 654 (1988).

Mindful of these boundaries, which guarantee political ac-

countability for the prosecutorial function, and of "the duty of

federal courts to construe a statute in order to save it from

constitutional infirmities," id. at 682, I would find that the tax

indictment is not "demonstrably related to the factual circum-

stances that gave rise to the Attorney General's ... request

for the appointment of the independent counsel," id. at 679.

I would therefore affirm the district court's order quashing

the indictment.

I

Vesting the executive power in the President of the United

States, the Constitution directs that "he shall take Care that

the Laws be faithfully executed." U.S. Const. art. II, s 3.

To aid in this task, Congress specifically delegated to the

Attorney General and her subordinates in the Department of

Justice the power to "conduct any kind of legal proceeding,

civil or criminal," 28 U.S.C. s 515(a) (1994); see id. s 516,

including the prosecution of tax crimes, see 28 C.F.R. s 0.70

(1998).

The Ethics in Government Act of 1978 carved a narrow

exception to the Attorney General's power to enforce federal

criminal law. In the wake of the "extraordinary sequence of

events" of the Watergate scandal--in particular, the firing of

special prosecutor Archibald Cox--Congress saw the need for

"the appointment of an independent temporary special prose-

cutor for certain limited cases where the Department of

Justice may have a conflict or interest with respect to a

particular investigation." S. Rep. No. 95-170, at 6, 34 (1977),

reprinted in 1978 U.S.C.C.A.N. 4126, 4222, 4250. Aware of

the constitutional implications of creating an independent

prosecutorial function outside the Executive Branch, Con-

gress adopted an elaborate array of procedures controlling

the appointment, powers, and jurisdiction of independent

counsel. See 28 U.S.C. ss 592-596. Independent counsel

may be removed by the Attorney General for "good cause,"

may perform only certain limited duties, and may act only

within the scope of prosecutorial jurisdiction ceded by the

Attorney General. See S. Rep. No. 95-170, at 56, 1978

U.S.C.C.A.N. at 4272 ("The prosecutorial jurisdiction of the

special prosecutor is one of the most important devices for

the control ... and the accountability of such a special

prosecutor."). Absent expansion by the Attorney General

under 28 U.S.C. s 593(c), the jurisdiction of an independent

counsel is limited to matters related to the Attorney General's

original request for appointment of an independent counsel

under 28 U.S.C. s 592(d).

In Morrison, the Supreme Court found these constraints

essential to the statute's constitutionality. Without them, the

Court could not have characterized the independent counsel

as an "inferior officer" under the Appointments Clause of the

Constitution. See 487 U.S. at 670-77. Once an independent

counsel investigates or prosecutes matters beyond the juris-

diction ceded by the Attorney General, the independent coun-

sel sheds his "inferior" status and becomes a "principal

officer" requiring Presidential appointment and Senate confir-

mation. See Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per

curiam). Although "the power to appoint inferior officers

such as independent counsel is not in itself an 'executive'

function in the constitutional sense," Morrison, 487 U.S. at

695, the power to appoint principal officers surely is. See

U.S. Const. art. II, s 2, cl. 2. For that reason, the Morrison

Court thought it constitutionally importa

This text is long and has been trimmed here. Open the source document for the complete record.