United States v. Hubbell, Webster L. ( 1999 )

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
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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
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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 important that "the jurisdic-
tion of the independent counsel is defined with reference to
the facts submitted by the Attorney General" and that "the
Act [28 U.S.C. s 594(f)] requires that the counsel abide by
Justice Department policy unless it is not 'possible' to do so."
487 U.S. at 696 (emphasis added). These limitations, among
others, "give the Executive Branch sufficient control over the
independent counsel," id., and ensure that the Act does not
" 'impermissibly undermine[ ]' the powers of the Executive
Branch," id. at 695 (citation omitted). An independent coun-
sel who exceeds the jurisdiction conferred by the Attorney
General usurps the President's constitutional power to main-
tain control of the inherently "executive" function of law
enforcement. See id. at 691, 694.
Morrison expressed similar constitutional concerns about
the role of the Special Division of this court. The statute
allows the Special Division to appoint an independent counsel
only after the Attorney General makes a preliminary investi-
gation, determines that further investigation is warranted,
prescribes a subject matter for investigation and potential
prosecution, and "applies" to the Special Division for an
appointment. See 28 U.S.C. ss 592(c)-(d), 593(b). In defin-
ing an independent counsel's prosecutorial jurisdiction, the
Special Division has only one function:
[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. Such
jurisdiction shall also include the authority to investigate
and prosecute Federal crimes ... that may arise out of
the investigation or prosecution of the matter with re-
spect to which the Attorney General's request was made,
including perjury, obstruction of justice, destruction of
evidence, and intimidation of witnesses.
Id. s 593(b)(3). Describing the Special Division's power to
define jurisdiction as "incidental" to its power to appoint,
Morrison made clear that the Special Division's authority is
quite limited:
[Congress] may vest the power to define the scope of the
office in the [Special Division] as an incident to the
appointment of the officer pursuant to the Appointments
Clause. That said, we do not think that Congress may
give the Division unlimited discretion to determine the
independent counsel's jurisdiction. In order for the Divi-
sion's definition of the counsel's jurisdiction to be truly
"incidental" to its power to appoint, the jurisdiction that
the court 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 (second emphasis added). To be sure, the
statute also provides that the Special Division may, upon a
request by an independent counsel, "refer to the independent
counsel matters related to the independent counsel's prosecu-
torial jurisdiction." 28 U.S.C. s 594(e). But Morrison left
no doubt that referrals may not expand the original scope of
an independent counsel's jurisdiction. See 487 U.S. at 680 n.18. Consistent with the separation of powers principle, only
the Attorney General may expand an independent counsel's
prosecutorial jurisdiction. See 28 U.S.C. s 593(c).
Thus, the Attorney General's "initial suggestion of jurisdic-
tion," Majority Opinion ("Maj. Op.") at 8--or more precisely,
as Morrison put it, "the factual circumstances that gave rise
to the Attorney General's investigation and request for the
appointment of the independent counsel," 487 U.S. at 679--
serves as the ultimate baseline for assessing the legality of
any definition of jurisdiction by the Special Division as well as
any exercise of authority by an independent counsel. Consti-
tutionally required, this baseline reconciles the principle of
separation of powers with the vesting of prosecutorial author-
ity in an official independent of the Executive Branch. See
id.
II
In her June 30, 1994 application to the Special Division, the
Attorney General prescribed the subject matter of the Inde-
pendent Counsel's jurisdiction as follows:
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 Jeffer-
son Clinton's, or Mrs. Hillary Rodham Clinton's relation-
ships with Madison Guaranty Savings & Loan Associa-
tion, Whitewater Development Corporation, or Capital
Management Services, Inc.
Application for Appointment of Independent Counsel, In re
Madison Guar. Sav. & Loan Ass'n (June 30, 1994). The
application also authorized prosecution of any conduct ob-
structing the investigation of this core subject matter. See
id. Exercising its power under 28 U.S.C. s 593(b)(1), the
Special Division on August 1, 1994 appointed Kenneth W.
Starr as independent counsel and granted him prosecutorial
jurisdiction over matters set forth in the Attorney General's
application. See Maj. Op. at 3-4 (describing the Special
Division's original grant of jurisdiction). Responding to sub-
sequent requests from the Independent Counsel, the Special
Division twice exercised its referral power under 28 U.S.C.
s 594(e). See Maj. Op. at 4-5 (describing the September 1,
1994 and January 6, 1998 referrals).
The second referral arose from an application in which the
Independent Counsel stated:
In the course of its investigation, this Office received
information regarding payments to Mr. Hubbell from
individuals and entities associated with the Clinton Ad-
ministration. These payments were made starting in
1994, when Mr. Hubbell was publicly known to be under
criminal investigation. This Office initiated a prelimi-
nary investigation into whether these payments might be
related to Mr. Hubbell's unwillingness to cooperate fully
with the investigation, as his plea agreement obligated
him to do. The grand jury has heard evidence related to
the payments, including evidence that Mr. Hubbell may
have committed fraud and tax crimes in connection with
them.
Application for Order of Referral, In re Madison Guar. Sav.
& Loan Ass'n (Dec. 31, 1997), at 3-4. In response, the
Special Division's referral authorized investigation and prose-
cution of crimes, including tax offenses, associated with Hub-
bell's income since 1994, as well as other crimes such as
obstruction of justice and perjury "related to payments that
Mr. Hubbell has received from various individuals and enti-
ties" since 1994. Order Granting Application for Order of
Referral, In re Madison Guar. Sav. & Loan Ass'n (Spec. Div.
D.C. Cir. Jan. 6, 1998). The Independent Counsel then
brought a 10-count, 42-page indictment detailing an elabo-
rate tax evasion scheme allegedly undertaken by Hubbell and
his wife, along with their lawyer and accountant.
We now face the following question: Under sections
593(b)(3) and 594(e) of the Ethics in Government Act, does
this indictment "arise out of" or "relate[ ] to" the original
scope of the Independent Counsel's prosecutorial jurisdiction?
To answer this question, we must evaluate the indictment not
against the two referrals by the Special Division--those refer-
rals could not have expanded the original scope of the Inde-
pendent Counsel's jurisdiction, see Morrison, 487 U.S. at 680 n.18--but against the Special Division's original August 5,
1994 grant of authority. Given Morrison's constitutional
limitation on the Special Division's power to define indepen-
dent counsel jurisdiction, see id. at 679, the precise question
before us is this: Is the indictment of Hubbell for tax evasion
"demonstrably related to the factual circumstances that gave
rise to the Attorney General's investigation and request for
the appointment of the independent counsel"?
Before addressing this issue, this court holds that the
Special Division's January 1998 referral is entitled to defer-
ence--"substantial" deference, according to Judge Williams;
at least "due" deference, according to Judge Wald. Either
way, I disagree.
At the outset, I think it important to clarify that, as a
procedural matter, we are not directly reviewing the Special
Division's referral. The statute nowhere authorizes appeals
from Special Division referrals. Courts of appeals and the
Special Division play different institutional roles under the
independent counsel statute. They act at different stages of
the investigation, and they have different documents before
them. Although the Special Division made an implicit deter-
mination of "relatedness" in its referral, it did so in the
context of a request for investigative and prosecutorial au-
thority. That investigation has now progressed beyond mere
allegations and has evolved into an indictment. Our task, like
the district court's before us, is to resolve a specific dispute
whose parameters have crystallized: We must decide whether
the April 30, 1998 indictment, in all its concreteness and
particularity, is "related to" the original scope of the Indepen-
dent Counsel's prosecutorial jurisdiction. The Special Divi-
sion did not resolve this question, nor could it.
In support of giving the referral deference, Judge Williams
accepts the view that the Special Division "act[ed] quite like
[an agency] glossing its own regulation" when it exercised its
referral power. Maj. Op. at 8. However, the Special Divi-
sion possesses none of the characteristics of agencies that
entitle their legal judgments to judicial deference. See Chev-
ron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 865 (1984). In making "related to" determina-
tions, the Special Division exercises no special or technical
expertise that circuit and district courts lack. The Special
Division has no political accountability through either execu-
tive or congressional oversight, and its members are neither
appointed by the President nor confirmed by the Senate for
their role. No provision of law allows for direct judicial
review of its decisions. Unlike administrative agencies--and
unlike even the U.S. Sentencing Commission, see 28 U.S.C.
ss 991(b), 994-995--the Special Division exercises no
congressionally-delegated policymaking responsibilities. This
last fact alone undermines the agency analogy, for "the power
authoritatively to interpret its own regulations is a component
of the agency's delegated lawmaking powers." Martin v.
Occupational Safety & Health Review Comm'n, 499 U.S. 144,
151 (1991) (emphasis added), quoted in Maj. Op. at 9.
Morrison left no doubt that in both form and function, the
Special Division is a court, not an agency. The opinion
consistently refers to the Special Division as a "court": "The
court consists of three circuit court judges or justices appoint-
ed by the Chief Justice of the United States," 487 U.S. at 661 n.3; "we do not think it impermissible for Congress to vest
the power to appoint independent counsel in a specially
created federal court," id. at 676; "there is no risk of partisan
or biased adjudication of claims regarding the independent
counsel by that court," id. at 683; "once the court has
appointed a counsel and defined his or her jurisdiction, it has
no power to supervise or control the activities of the counsel,"
id. at 695. Were this language not clear enough, Morrison
explicitly held that the Special Division's functions fall within
the range of powers assigned to federal courts by the Ap-
pointments Clause, see id. at 673-77, and by Article III, see
id. at 677-85.
Morrison also acknowledged that the Special Division func-
tions in a judicial capacity when exercising its referral power.
Observing that "in order to decide whether to refer a matter
to the counsel, the court must be able to determine whether
the matter falls within the scope of the original grant," the
Supreme Court said that the referral power involves "the
power to 'reinterpret' or clarify the original grant." Id. at
685 n.22 (emphasis added); see also In re Espy, 80 F.3d 501,
507 (Spec. Div. D.C. Cir. 1996) ("In referring a related
matter, this court is interpreting, but not expanding, the
independent counsel's original prosecutorial jurisdic-
tion...."). In other words, the referral function requires the
Special Division to decide a legal question--i.e., whether the
matters contained in an independent counsel's request for
referral are "related to" the original jurisdictional grant. See
id. at 507-09; In re Olson, 818 F.2d 34, 47-48 (Spec. Div.
D.C. Cir. 1987). Answering this question calls on the Special
Division--whether explicitly (as in Espy) or implicitly (as in
this case)--to develop and apply a theory of "relatedness"
consistent with the independent counsel statute and the Con-
stitution.
Because the Special Division's January 1998 "related to"
determination amounts to a legal judgment, we owe it no
deference. We typically apply de novo review to decisions of
other courts (except the Supreme Court) on questions of
federal law, see Elder v. Holloway, 510 U.S. 510, 516 (1994)
(questions of law must be resolved de novo on appeal), and
"[w]hen de novo review is compelled, no form of appellate
deference is acceptable," Salve Regina College v. Russell, 499
U.S. 225, 238 (1991). No one contends that the Special
Division, as part of the D.C. Circuit, creates binding circuit
precedent through its decisions. In relation to this court, the
Special Division's legal determinations resemble those of our
sister circuits, whose conclusions of law we review neither
directly nor deferentially.
Acknowledging that referrals could be characterized as
judicial acts, Judge Williams says that referrals most closely
resemble the issuance of search warrants by federal magis-
trates or state judges, whose determinations of probable
cause, "[a]lthough made ex parte and resolving constitutional
questions," are accorded " 'great deference' " under settled
law. Maj. Op. at 11 (citing Illinois v. Gates, 462 U.S. 213, 236
(1983)). In Gates, however, the Supreme Court made clear
that the deferential standard of appellate review applicable to
search warrants stems directly from the intensely fact-bound
nature of an issuing magistrate's probable-cause determina-
tion. See 462 U.S. at 232 ("[P]robable cause is a fluid
concept--turning on the assessment of probabilities in partic-
ular factual contexts--not readily, or even usefully, reduced
to a neat set of legal rules."); id. at 241 ("[P]robable cause
deals 'with probabilities. These are not technical; they are
the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians,
act.' ") (citation omitted). Unlike a magistrate, the Special
Division does not "make a practical, common-sense decision"
about probabilities when it considers requests for referrals.
Id. at 238. Rather, it compares two legal documents--the
independent counsel's referral request and the original grant
of prosecutorial jurisdiction--and then determines whether
the former is "related to" the latter within the meaning of the
statute. Like a court evaluating a complaint on a motion to
dismiss, the Special Division finds no facts, weighs no evi-
dence, and makes no credibility determinations. It simply
decides a question of law. Given the interpretive nature of
this task, deference cannot be justified on the grounds "that
the [Special Division] is 'better positioned' than the appellate
court to decide the issue in question or that probing appellate
scrutiny will not contribute to the clarity of legal doctrine."
Salve Regina College, 499 U.S. at 233.
It is true that a referral under the independent counsel
statute presents a situation "[w]here ... the relevant legal
principle can be given meaning only through its application to
the particular circumstances of a case." Miller v. Fenton,
474 U.S. 104, 114 (1985). But the Supreme Court has direct-
ed that in such situations a federal appellate court must
retain "its primary function as an expositor of law." Id. De
novo appellate review is particularly important where, as
here, the relevant legal principle has constitutional dimen-
sions. See, e.g., Thompson v. Keohane, 516 U.S. 99, 107
(1995) (requiring federal habeas court to review de novo
whether suspect was "in custody" at time of interrogation for
purposes of Miranda); Miller, 474 U.S. at 112 (requiring
"independent federal determination" of the voluntariness of a
confession).
I disagree that referrals will have no real function under
the statute unless we defer to the Special Division. See Maj.
Op. at 11. For one thing, the Special Division's referral
authority provides independent counsel, sensitive to both the
limitations on their office and the ethic of self-restraint hon-
ored by federal prosecutors, with an avenue for seeking
independent and impartial confirmation of their authority.
Immune from direct judicial review, a referral gives legitima-
cy to an independent counsel's investigation even if a federal
court later determines that a specific indictment exceeds the
prosecutor's jurisdiction. This legitimacy provides a level of
protection against any attempt by the Attorney General to
remove or by Congress to impeach an independent counsel on
the grounds that he has overstepped his authority. See 28
U.S.C. s 596(a)(1). The referral process also empowers the
Special Division to enforce the boundaries of independent
counsel jurisdiction. Where the Special Division rejects a
request for referral, only the most zealous and imprudent
prosecutor would pursue matters covered by the rejected
application. Far from existing "simply to relieve the solitude
of the Independent Counsel's office," Maj. Op. at 11, the
referral power thus serves important functions under the
statutory scheme, constraining independent counsel when
they near the limit of their authority and safeguarding their
political independence if their investigative authority is chal-
lenged.
For all of these reasons, I would hold that this court owes
no deference to the Special Division's "related to" determina-
tion. In assessing the legality of this tax indictment, our
review should be de novo.
III
This court's conclusion that the Independent Counsel has
authority to proceed with this indictment stems from its view,
flawed in my judgment, that we would "undercut [Morrison]"
were we to construe the independent counsel statute in ways
"that prevent this Independent Counsel from performing his
duty in a manner reasonably approximating that of an ordi-
nary prosecutor." Maj. Op. at 20. Insisting on affording the
Independent Counsel the same "leeway," id. at 15, given to
"every other prosecutor," id. at 19, the court ignores the basic
premise critical to the constitutionality of the statute: Inde-
pendent counsel do not and cannot have the powers of
ordinary prosecutors. If they did, the office would " 'imper-
missibly undermine[ ]' the powers of the Executive Branch."
Morrison, 487 U.S. at 695 (citation omitted). Among other
constraints, it is the limited jurisdiction of independent coun-
sel that "give[s] the Executive Branch sufficient control over
the independent counsel to ensure that the President is able
to perform his constitutionally assigned duties." Id. at 696. That an ordinary federal prosecutor might have authority to
indict Hubbell for tax evasion therefore tells us nothing about
whether this Independent Counsel--constrained by the stat-
ute and the separation of powers principle--may bring the
same indictment. Nor do we learn anything from the author-
ity possessed by the Watergate Special Prosecutor, see Maj.
Op. at 17, for the full scope of his authority flowed directly
from the Attorney General, thus presenting no separation of
powers concerns.
Reviewing the record de novo, I would find that the indict-
ment of Hubbell for tax evasion was not "demonstrably
related to the factual circumstances that gave rise to the
Attorney General's investigation and request for the appoint-
ment of the independent counsel." Morrison, 487 U.S. at
679. Hubbell's alleged failure to pay taxes on fees for work
from 1994 to 1997 in Washington, D.C., is unrelated to
whether, almost a decade earlier in Little Rock, Arkansas,
"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 relationship with Madison Guaranty
Savings and Loan Association, Whitewater Development Cor-
poration, or Capital Management Services, Inc." Application
for Appointment of Independent Counsel. The Attorney
General who prescribed the original subject matter for inves-
tigation agrees. According to her amicus brief:
[A]n offense cannot be 'related' within the meaning of
[the statute] solely because an independent counsel dis-
covers it during a legitimate phase of his investigation.
That interpretation of the statute would allow an inde-
pendent counsel to prosecute offenses that bear no rela-
tionship to his original grant of jurisdiction.
Amicus Br. for United States at 32. "The current prosecu-
tion," the Attorney General concludes, "does not fall within
[the Independent Counsel's] authority directly to investigate
the Whitewater/Madison Guaranty matter." Id. at 34.
In reaching the opposite conclusion, this court rests its
finding of "relatedness" on two assumptions: that the fees
Hubbell received were payments for his silence, and that his
failure to pay taxes on them had an obstructive effect on the
Whitewater investigation. In my view, both assumptions are
flawed, and each independently undermines the statutory and
constitutional constraints on independent counsel jurisdiction.
Assumption of obstructive effect
I begin with the court's second assumption, i.e., that Hub-
bell's failure to pay taxes on alleged hush money had an
obstructive effect on the Whitewater investigation. Not limit-
ed to Hubbell's failure to pay taxes on alleged hush money,
the indictment's sheer breadth belies the court's obstruction
theory. The indictment charges Hubbell with non-payment
of taxes on income from a book contract with HarpersCollins
Publishers, early withdrawals from an IRA account and pen-
sion plan, and sales of his home and a Little Rock warehouse.
In addition, by charging Hubbell's lawyer and accountant for
aiding and abetting tax evasion, the Independent Counsel did
not limit the indictment to individuals who could have ob-
structed the Whitewater investigation.
According to my colleagues, "any criminal conduct that
could hide the hush money ... tends to impede investigation
and prosecution of the matter being hushed up." Maj. Op. at
16. "The less disclosure of the payments," they say, "the less
chance that they and their nature will come to light...." Id.
But even assuming that Hubbell's "consulting" fees were
hush money (an assumption not supported by this record, see
infra at 16-17), the facts of this case provide no support for
the court's concealment theory. In his 1994 tax return,
Hubbell actually disclosed $376,075 in "consulting" income
that the Independent Counsel suspects is hush money. This
amount included $100,000 from Hong Kong China Limited
and $62,775 from Revlon, the two sources the court high-
lights, see Maj. Op. at 4-5 & n.1, en route to finding that
"[t]he timing, sources, and extent of the payments make the
belief that they were hush money reasonable," id. at 20. Acknowledging these disclosures, the court rests its finding of
concealment on the fact that Hubbell did not report an
additional $77,000 in "consulting" fees in 1994. See Maj. Op.
at 16. But since Hubbell disclosed the lion's share of the
alleged hush money on his 1994 tax return--including the
very payments that the Independent Counsel and my col-
leagues believe have the strongest whiff of obstruction--it
seems odd to think that Hubbell chose not to disclose the
remaining fraction in order to conceal hush money payments.
In any case, nothing in the record (beyond the non-disclosure
itself) suggests that the $77,000 was hush money. See infra
at 16-17. We thus lack any basis for suspecting that Hub-
bell's non-disclosure reflected a concerted effort to hide hush
money instead of a tendency (generally apparent from the
indictment) to ignore the internal revenue laws.
The court's concealment theory makes much more sense in
a case like United States v. Haldeman, 559 F.2d 31 (D.C. Cir.
1976), cited in Maj. Op. 17. There the defendants directly
obstructed the Watergate investigation by lying under oath to
the Special Prosecutor, a grand jury, and a Senate committee
about hush money payments they had made to the Watergate
burglars. See 559 F.2d at 59; see also United States v.
Blackley, No. 98-3036, slip op. at 9 (D.C. Cir. Jan. 26, 1999)
(upholding conviction of high-ranking Department of Agricul-
ture official who concealed payments he received from indi-
viduals regulated by the Department by failing to disclose
those payments on an official financial disclosure form whose
very purpose was "to bring suspicious influences to the
surface").
The court next adopts the Independent Counsel's argument
that Hubbell's failure to pay taxes "enhanc[ed] the financial
or economic effect of the hush money payments.... And
that contributes to the obstruction of the investigation." Oral
Arg. Tr. at 16; see Maj. Op. at 16 ("[T]he more value Hubbell
can squeeze from hush money ... , the more chance it will
succeed in preventing his cooperation."). But even if we
again assume the payments to be hush money, their obstruc-
tive effect ended upon Hubbell's receipt; his subsequent non-
payment of taxes bought his benefactors no further silence.
The Independent Counsel never alleged that Hubbell's bene-
factors somehow discounted the value of the alleged hush
money by the probability that he would not pay taxes. In-
deed, who could have foreseen the bizarre nature of the tax
evasion scheme detailed in the indictment? Who would have
expected that, having reported $376,075 of his $450,010 in
"consulting" income on his 1994 tax return, Hubbell would
then, as with his other income, not pay taxes on it?
The court's economic enhancement theory permits virtually
unlimited expansion of the Independent Counsel's jurisdic-
tion. Had Hubbell used the alleged hush money for profit-
able but illegal gambling or insider trading, for example, this
theory would allow the Independent Counsel to indict him for
these crimes simply because they increased the value of the
money. Surely this result stretches the concept of "related-
ness" beyond its statutory and constitutional breaking point.
Together, the concealment and economic enhancement the-
ories enable the Independent Counsel to comb through all of
Hubbell's investments and expenditures--including, as the
indictment reveals, his purchase of clothes, groceries, and
laundry services--until discovering some illegality on which
to indict him. By adopting these theories, the court converts
the Office of the Independent Counsel from a device for
investigating a specific "subject matter," 28 U.S.C.
s 593(b)(3), into a tool for prosecuting a specific individual.
As the district court observed, "[t]he Madison-Whitewater
matters that were the subject of the Original Grant and the
tax matters that are the subject of this case have nothing in
common--nothing, at least, that appears on this record--
except Webster Hubbell." United States v. Hubbell, 11
F. Supp. 2d 25, 32 (D.D.C. 1998). This is precisely the result
Justice Scalia, dissenting in Morrison, most feared:
[T]he most dangerous power of the prosecutor [is] that
he will pick people that he thinks he should get, rather
than cases that need to be prosecuted. With the law
books filled with a great assortment of crimes, a prosecu-
tor stands a fair chance of finding at least a technical
violation of some act on the part of almost anyone. In
such a case, it is not a question of discovering the
commission of a crime and then looking for the man who
has committed it, it is a question of picking the man and
then searching the law books, or putting investigators to
work, to pin some offense on him.
487 U.S. at 728 (Scalia, J., dissenting) (quoting then-Attorney
General Robert Jackson, The Federal Prosecutor, Address
Delivered at the Second Annual Conference of United States
Attorneys (April 1, 1940)).
Deeply corrosive to the statutory and constitutional limits
on independent counsel jurisdiction, the court's concealment
and economic enhancement theories cannot justify a finding
of "relatedness" in this case. In my view, this conclusion in
and of itself is enough to sustain the district court's quashing
of the indictment. But because the court's contrary holding
also rests on the assumption that Hubbell's fees were hush
money, I set forth my views on this issue as well.
Assumption that Hubbell's fees were hush money
Even if the court's concealment and economic enhancement
theories had merit, they have no applicability to this case for
one simple reason: Although both depend entirely upon
Hubbell's involvement in an underlying crime of obstruction,
this record contains no credible evidence of such a crime.
In his brief, the Independent Counsel refers to the "possi-
bility" that Hubbell "might have accepted money as an in-
ducement to obstruct the Madison investigation." OIC Br. at
20 (emphasis added); see also id. (stating that "large pay-
ments" on which Hubbell did not pay taxes "may be related
to his non-cooperation with respect to Whitewater and
Madison-related matters") (emphasis added). Yet the Inde-
pendent Counsel has chosen not to indict Hubbell for accept-
ing hush money payments or anyone else for making them.
Although I agree with my colleagues that the Independent
Counsel need not formally charge Hubbell for accepting hush
money in order to indict him for tax evasion, I disagree that
we may sustain the tax indictment simply because the Inde-
pendent Counsel is "diligently pursuing his investigation of
the main allegation that [hush] money was channeled to
Hubbell," Wald Op. at 1. Without credible evidence that
Hubbell accepted hush money, there can be no "demon-
strabl[e] relat[ionship]" between Hubbell's tax crimes and the
Independent Counsel's original grant of jurisdiction. Morri-
son, 487 U.S. at 679 (emphasis added).
At oral argument, the Independent Counsel conceded that
"we right now, as a matter of public record, don't know" that
Hubbell's "consulting" income was hush money. Oral Arg.
Tr. at 13. Notwithstanding this uncertainty, my colleagues
have seen no need either to accept the Independent Counsel's
offer to submit evidence in camera--evidence that he claims
shows that the commission of that crime was more likely than
not, see id.--or to remand to the district court to consider
such evidence. Instead, they accede to his request that we
not "indulge in the assumption that there is no evidence of
obstruction," id., shoring up the Independent Counsel's innu-
endo with non-record evidence plus a little innuendo of their
own, see Maj. Op. at 4-5 n.1.
The record in this case is quite unlike the record in United
States v. Haldeman, where this court upheld the convictions
of H.R. Haldeman, John Ehrlichman, and John Mitchell for
"conceal[ing] a cover-up" in the Watergate affair. Maj. Op.
at 17 (emphasis omitted). In that case, the allegations that
the defendants paid hush money to the Watergate burglars
and then lied about it under oath were supported by vast
amounts of credible evidence, primarily consisting of direct
testimony and tape recordings of key conversations among
the co-conspirators. See Haldeman, 559 F.2d at 55-59 (de-
scribing defendants' "commitments" to pay the burglars hush
money and detailing defendants' extensive conspiracy to raise,
transfer, deliver, and conceal the hush money payments).
My colleagues say that independent counsel should enjoy
the same discretion that U.S. Attorneys have to charge
defendants with "cover-up" crimes without charging them for
the underlying crimes. See Maj. Op. at 18 (citing Depart-
ment of Justice guidelines). But as I have pointed out,
Hubbell's tax offenses cannot plausibly be labeled "cover-up"
crimes. See supra at 13-14. Moreover, the court's analogy
is constitutionally flawed. It ignores the critical fact that
U.S. Attorneys, unlike independent counsel, never need to
prove that a particular crime falls within the jurisdiction
ceded to them. They have authority to follow a trail of
criminality and (subject to Justice Department procedures
described below) to convert an investigation of real estate
fraud into a prosecution of tax crimes. If the constitutional
separation of powers precludes anything, it precludes the
extension of such vast discretion to independent prosecutors
who lack "the unifying influence of the Justice Department"
and "the perspective that multiple responsibilities provide."
487 U.S. at 732 (Scalia, J., dissenting).
IV
Finally, in addition to adopting virtually limitless theories
of "relatedness" and assuming that Hubbell accepted hush
money, my colleagues discount the constitutionally significant
requirement that independent counsel "comply with the writ-
ten or other established policies of the Department of Justice
respecting enforcement of the criminal laws" unless "to do so
would be inconsistent with the purposes of the [Act]." 28
U.S.C. s 594(f)(1); see Morrison, 487 U.S. at 696. Under
Department of Justice Tax Division Directive 86-59, all feder-
al prosecutors, expressly including independent counsel, must
follow certain procedures before "seeking to expand nontax
grand jury investigations to include inquiry into possible
federal criminal tax violations." Authority to Approve Grand
Jury Expansion Requests to Include Federal Criminal Tax
Violations, 5 Dep't of Justice Manual 6-227, 6-227 (1995-1
Supp.). This directive prevents prosecutors from targeting
an individual for tax crimes when their investigative authority
extends only to a non-tax criminal investigation. Specifically,
it requires all prosecutors to submit written requests to
officials at the Internal Revenue Service and Tax Division
"containing pertinent information relating to the alleged fed-
eral tax offenses." Id. at 6-228. Approval requires an IRS
referral certifying that "there is reason to believe that federal
criminal tax violations have been committed." Id. at 6-229. In addition, prosecutors must conduct grand jury proceedings
"in sufficient time to allow the results of the tax segment of
the grand jury proceedings to be evaluated by the Internal
Revenue Service and the Tax Division before undertaking to
initiate criminal proceedings." Id.
In this case, I see no reason why the Independent Counsel
could not have complied with Tax Directive 86-59. My
colleagues are willing to assume that requiring such compli-
ance would be "inconsistent with the purposes" of the inde-
pendent counsel statute, 28 U.S.C. s 594(f)(1), attributing to
the IRS--merely because it is an executive branch agency--a
conflict of interest so severe that it cannot make a reasoned
judgment as to whether Hubbell should be prosecuted for tax
crimes. They apparently view compliance with Justice De-
partment procedures as categorically "inconsistent with the
purposes" of the statute whenever such procedures submit
federal prosecutors to oversight by executive branch agencies.
Surely section 594(f)(1) is not so toothless. This provision,
which at the time of Morrison required compliance "except
where not possible," 28 U.S.C. s 594(f) (Supp. V 1983)
(amended 1994), was viewed by the Supreme Court as one of
the statutory safeguards ensuring that the Executive Branch
has enough control over independent counsel to accomplish its
constitutionally assigned functions. See Morrison, 487 U.S.
at 696.
V
In sum, I believe that the court's finding of "relatedness"--
premised on deference to the Special Division, unbounded
theories of obstruction of justice, and unsubstantiated suspi-
cions of illegality--undermines the constitutional constraints
on independent counsel jurisdiction. Morrison endowed the
statute's jurisdictional controls with constitutional significance
because it recognized that the absence of such controls would
enable independent counsel to usurp executive power. This
case provides reason to worry that the Office of the Indepen-
dent Counsel indeed functions as a "mini-Executive ... oper-
ating in an area where so little is law and so much is
discretion." Morrison, 487 U.S. at 732 (Scalia, J., dissenting).
Because the constitutional separation of powers demands
greater vigilance, I believe that this Independent Counsel has
exceeded his jurisdiction.
My conclusion would not impair the Ethics in Government
Act's "central purpose ... [of] permit[ting] the effective
investigation and prosecution of high level government and
campaign officials," United States v. Wilson, 26 F.3d 142, 148
(D.C. Cir. 1994), quoted in Maj. Op. at 15. This Independent
Counsel's original grant gives him all the authority he needs
to prosecute Hubbell and others for obstruction of justice if
he has evidence that Hubbell received hush money. See 28
U.S.C. s 593(b)(3). If he wants to prosecute Hubbell for self-
standing tax offenses discovered in the course of his investi-
gation, he can ask the Attorney General to expand his investi-
gative jurisdiction, see id. s 593(c), and then set in motion
Justice Department procedures for prosecuting criminal tax
violations, see supra at 18. As the subsequent indictment of
Hubbell illustrates, see Neil A. Lewis, Starr Indicts Hubbell a
3d Time, N.Y. Times, Nov. 14, 1998, at A1, the Independent
Counsel, short of pursuing this tax indictment, retains vast
investigative and prosecutorial authority under the Special
Division's January 1998 referral.
I respectfully dissent.
Williams, Circuit Judge, dissenting from Part II: The
commentator who predicted that Fisher and Doe would "inev-
itably lead" to "metaphysical speculation" was apparently all
too prescient. See Samuel A. Alito, Jr., "Documents and the
Privilege Against Self-Incrimination," 48 U. Pitt. L. Rev. 27,
59 (1986). The majority opinion supplies some such specula-
tion and demands more from the district court on remand. I
would limit the district court's inquiry about the subpoenaed
documents to verifying that the Independent Counsel, in
securing Hubbell's indictment, has only used information that
he would have had if the documents had appeared in his
office, unsolicited and without explanation.
* * *
It is clear that a prosecutor who has obtained personal
documents by subpoena may not, without violating either the
Fifth Amendment or a use immunity of equivalent scope
granted under 28 U.S.C. s 6002, use against the subpoenaed
person any testimonial, incriminating information that is com-
municated by that person's "act of production" of the docu-
ments. See Doe v. United States, 487 U.S. 201, 209 (1988)
("Doe II"). The Supreme Court identified three species of
information possibly communicated by such an act of produc-
tion--possession, authentication and existence. See id.
Here the only interesting issue is the "existence" theory;
possession and authentication seem properly outside the case.
Hubbell's prior possession is irrelevant if, as appears to be
the case, the Independent Counsel relied on the documents
only for the information that they contain, and thus had no
occasion to rely on Hubbell's act of production, or anything
else, for evidence that Hubbell at one time had "possessed"
them. Nor does it appear that he used the production for
authentication; he never sought to show the grand jury that
Hubbell, by delivering the documents in response to the
subpoena, had identified them as being ones that matched the
descriptive language of the subpoena.
Thus we are left with "existence." From the truism that
the Independent Counsel could not use the contents of the
documents unless they (at some time) existed, and unless he
learned of that existence, the majority leaps to the proposi-
tion that the Independent Counsel's awareness of their exis-
tence stems from a testimonial aspect of Hubbell's act of
production. Accordingly, it says, the Independent Counsel
may use the information in the documents if but only if he can
show that he possessed, before securing the subpoena, a
knowledge of the documents' existence sufficiently detailed
that his later knowledge, after their delivery, was a "foregone
conclusion."
But not all aspects of the act of production are testimonial.
Where an item of information that the prosecutor receives
from a document delivery flows from a non-testimonial as-
pect, he does not depend on any testimonial aspect. Informa-
tion as to the existence of the pieces of paper turned over by
a subpoenaed party can always be traced to non-testimonial
information. I elaborate below.
* * *
"Testimonial." Before the Fisher Court introduced the
"foregone conclusion" discussion on which the majority is so
focused--and which I discuss below--it observed that the
whole issue of whether something is "testimonial" depends on
the facts and circumstances. Fisher v. United States, 425
U.S. 391, 410 (1976). But what facts and circumstances are
relevant?
One possibility might be that all actions from which we can
glean information are considered testimonial communications
for purposes of Fifth Amendment analysis. But the prece-
dents upon which Fisher relied in more or less rejecting the
view of Boyd v. United States, 116 U.S. 616 (1886), that the
Fifth Amendment protects the contents of subpoenaed docu-
ments, appear to rule this out. Those cases involve the
government forcing a person to try on a blouse worn by the
perpetrator to establish whether it fit the defendant, Holt v.
United States, 218 U.S. 245 (1910), or to give blood samples,
Schmerber v. California, 384 U.S. 757, 764-65 (1966), voice
samples, United States v. Wade, 388 U.S. 218, 222-23 (1967),
or handwriting samples, Gilbert v. California, 388 U.S. 263,
266-67 (1967). They do not rely on anything like the "fore-
gone conclusion" rationale; instead, they find that such acts
are not testimonial because they fit into the category of
"compulsion which makes a suspect or accused the source of
'real or physical evidence.' " Schmerber, 384 U.S. at 764.
Nor can these cases be recharacterized as ones where the
prosecutor's grasp of the information obtained was a foregone
conclusion. Of course it is true that, for example, it is
typically not much to admit that one can speak. But in giving
a voice sample, one also admits that one's voice has various
characteristic idiosyncrasies--a non-obvious and incriminating
fact that the law allows the prosecutor to secure by compul-
sion. The prosecutor's and jury's access to that information
is as dependent on the speaker's compelled implicit admission
of ability to speak as their access to the information on
documents is dependent on the subpoenaed party's implicit
admission of the documents' existence.
One can, of course, discern a communicative element in the
giving of a voice sample: a person commanded to speak
implicitly says, "This is the way I sound when I speak." But
that information adds nothing to what a jury learns from its
own ears (or from a properly authenticated tape, if that is the
way it is done, see, e.g., United States v. Dionisio, 410 U.S. 1 (1973) (grand jury subpoena requiring suspects to read tran-
scripts into a recording device is consistent with Fifth
Amendment)). Similarly, a person giving a blood sample
implicitly says, "This is my blood." Though there is implicit
communication, the prosecutor need not rely on it, so long as
he has the blood and a witness to the blood-giving itself.
"Foregone Conclusion." The 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. 425 U.S. at 411. The Court said: "Surely the Govern-
ment is in no way relying on the 'truthtelling' of the taxpayer
to prove the existence of or his access to the documents. The
existence and location of the papers are a foregone conclu-
sion...." Id. (citation omitted). In my view, the latter
sentence should be read in light of the former. That is,
"foregone conclusion" is only a subset of the broader set:
instances where sources independent of testimonial aspects of
the compulsion fully account for the prosecutor's evidence.
This relationship is illustrated in an example used in Fish-
er: "When an accused is required to submit a handwriting
exemplar he admits his ability to write and impliedly asserts
that the exemplar is his writing. But in common experience,
the first would be a near truism and the latter self-evident."
Id. The Court here is implicitly referring to Gilbert v.
California, 388 U.S. at 265-67, one of the cases it had just
relied upon in more or less overruling Boyd. In Gilbert, the
police got the suspect to write out some handwriting exem-
plars while he was in custody and being questioned. When
the Court calls the implicit admission of ability to write a
"near-truism," the "near" is critical. Consider a kidnapping,
in which a ransom note is a major piece of evidence, but the
suspect claims illiteracy. Suppose police, posing as terrorists,
frightened him into writing something (the text of which had
no bearing on the kidnapping). There might be some sort of
due process argument, but in using the handwriting sample
the prosecutor would not need to rely on any implicit testimo-
nial aspect of the scenario ("Yes, I do know how to write.");
accordingly he could use the sample without violation of the
defendant's privilege against self-incrimination.
More important is the defendant's implicit admission that
the exemplars are his. This is not, strictly speaking, "self-
evident"; rather, it is supported by evidence (the testimony of
the witnessing police officers) of a non-testimonial aspect of
the act of production, here the act of writing. But as the
Court says, the government is "in no way relying on the
'truthtelling' of [defendant]" to prove anything: it is relying
only on the immediate personal observations of the policemen
and on nontestimonial aspects of the defendant's act to link
the handwriting to the defendant. Everything else of eviden-
tiary value, namely the idiosyncrasies of the writing, depends
only on the writing itself. As we'll see more explicitly below,
this matches the relation of a prosecutor to documents deliv-
ered pursuant to subpoena. The information on the docu-
ments stands or falls on its own value, even though (by
definition) produced by the defendant's act of production.
Thus: for handwriting, the link to the defendant is estab-
lished by police witnesses and the testimonial value of the
defendant's act of production is redundant; for documentary
information, so long as the prosecutor depends as here only
on information in the documents themselves for the link to
defendant, the communicative aspect of the act of delivery is
equally redundant.
Existence. In light of the above, the only sense of "exis-
tence" that is covered by the Fifth Amendment is that which
refers back to the subpoena. The responsiveness of the
documents to the subpoena gives knowledge of "the existence
of the papers demanded," 425 U.S. at 410 (emphasis added).
"Yes, these are the records you described in the subpoena."
If the government could refer back to the subpoena to
identify documents and to clarify relationships that were not
clear on their face or by other independent means, then it
would be using a testimonial component of the transaction--
the witness's implicit statement that the documents match the
subpoena's description. Hubbell's claim for blanket exclusion
of the contents, by contrast, relies on existence in a quite
different sense--the fact that these particular pieces of paper
are in being. But this is quite easily confirmed by these
papers' own physical presence, which is "self-evident" at the
time and place of production and so long thereafter as the
government maintains proper custody. Existence in that
sense 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.
Some of the language in Fisher and Doe, to be sure,
suggests a more sweeping view of "existence." Fisher I have
discussed above. Doe upholds a decision quashing certain
subpoenas, based on trial court findings (endorsed by the
court of appeals) that delivery of the documents gave the
prosecutor previously absent knowledge of their existence,
possession, and authenticity. See United States v. Doe, 465
U.S. 605, 613-14 & nn.11-13 (1984). But the implications are
quite unclear. The Court relied explicitly and entirely on the
"two courts" rule. Id. While the majority argues that the
findings below were structurally applications of law to fact,
see Maj. at 34-35 n.24, the Court's treatment of them was as
simple fact. Second, to the extent that its rehearsing of the
arguments embraced in the courts below may suggest the
sort of "existence" theory employed by the majority, the
inference is drawn in question by the Court's reliance on the
anticipated use of the act of production for authentication of
the documents, i.e., use of an indisputably testimonial aspect
of subpoena compliance. See 465 U.S. at 614 n.13.
Accordingly, the logic of Fisher and Doe, if not every
phrase, clearly supports the prosecutor's right to use informa-
tion from subpoenaed documents regardless of whether he
was previously able to describe them. The particular docu-
ments' existence speaks for itself once they have been deliv-
ered; so long as his use of them is independent of any
testimonial aspects of the witness's act of production, that
use is consistent with the witness's Fifth Amendment privi-
lege.
* * *
The majority confuses the issue with a rather odd distinc-
tion: if compulsion "acts upon, and requires the exercise of an
individual's mental faculties for communication," it is testimo-
nial; if it "merely utilizes the body of the accused as a form of
evidence," it is not. Maj. at 39.
To the extent that the majority here acknowledges that the
bare physical aspects of a production--the meanings that are
directly apparent to the senses--are unprotected by the Fifth
Amendment, it is correct. But there is no reason to restrict
this to the "body of the accused."
In fact, the majority fails to explain the cases that fall
outside this apparent restriction. Gilbert v. California, ap-
provingly cited by the majority, concerned a handwriting
sample that the suspect had to write out and then turn over
to the police. But more telling is Baltimore Dept. of Social
Servs. v. Bouknight, 493 U.S. 549, 554-55 (1990). In that
case, a woman was ordered to turn over a child whom she was
believed to have abused and who was last seen in her custody.
The Court held, among other things, that the woman "cannot
claim the privilege based upon anything that examination of
[the child] might reveal."
Thus in Bouknight it was not the body of the accused that
was used as a form of evidence, but the body of another.
Documents are exactly analogous: physical objects the exami-
nation of which yields evidentiary value or clues. Documents
do, of course, represent the concrete embodiment of mental
activity, but that is a false lead: these thoughts (the contents
of the documents) were, we assume, put to paper quite
voluntarily--if they were not, they would unquestionably be
protected. See Doe, 465 U.S. at 610-11. In Bouknight the
Court was obviously indifferent to the necessity that the
suspect find and turn over a child whose location was com-
pletely unknown to the government; the court here should be
equally indifferent to the necessity that Hubbell do the same
for documents.
Delivery of the child in Bouknight clearly depended on the
suspect's exercise of her mental faculties; in fact, her intellec-
tual efforts turning up the child were no less then they would
have been had the government known its whereabouts in
advance. The case thus flatly contradicts the majority idea
that self-incrimination occurs whenever the subpoena "re-
quires the exercise of an individual's mental faculties." The
majority might say, with internal consistency though not with
conformity to the cases, that the government may use the
product of forced mental exercise so long the mental exercise
is no more than an automaton's execution of intellection
already carried out by the government. But that would take
it to the position that a document subpoena must itself set
forth whatever descriptive detail is necessary (under the
majority's murky test) about the documents' character and
location. Even the majority evidently recoils at this absurdi-
ty.
There are of course non-physical aspects to the production
in Bouknight. In another part of that opinion, the Court
used a different analysis for the suspect's "implicit communi-
cation of control over [the child] at the moment of produc-
tion," 493 U.S. at 455, saying that although this was arguably
an incriminating "testimonial assertion," id., some uses of it
might be permissible under the doctrine that the Fifth
Amendment may not be invoked to resist compliance with
certain types of regulatory regimes, id. at 555-62. Here, of
course, the government has no interest in Hubbell's control of
the documents at the moment of production, and seeks to
draw no inferences from that control. But the majority's
concern here with information about the documents before
their delivery is utterly different from the Bouknight Court's
focus on "the moment of production."
* * *
The majority's confusion is further evident in its attempt to
draw some distinction between whether something is "testi-
monial" and whether it has "testimonial value." See Maj. at
42 n.27, 45-46 n.31. This dissent, the majority argues,
wrongly frames the former rather than the latter issue as the
key. Putting aside such issues as whether this terminological
difference makes sense--if something is not "testimonial," its
"testimonial value" is obviously zero--or is to be found in the
cases--Fisher, for example, simply refers to "the more diffi-
cult issue[ ]" of "whether the tacit averments ... are [ ]
testimonial," 425 U.S. 410--the actual analysis endorsed by
the majority is not much different from the analysis in the
"Foregone Conclusion" section above. The majority writes:
Where the government need not rely upon the truthtell-
ing of the witness, because it has prior knowledge of the
information that will be communicated through the act
of production, 'no constitutional rights are touched.'
Maj. at 46 n.31 (emphasis added) (quoting Fisher). The only
disagreement here is the italicized portion: for some rea-
son, the majority believes that possession of "prior knowl-
edge" is the only circumstance in which the government
"need not rely upon the truthtelling of the witness." But the
majority never explains how, under its theory, there is no
testimonial self-incrimination if the government need not rely
because it already knows, while there is testimonial self-
incrimination if the government has another reason for dis-
pensing with reliance on communicative aspects of the wit-
ness's acts. Nor could any such explanation be consistent
with precedent. In Bouknight, which concerned a subpoena
to turn over a missing child, the Court found that the target
could not "assert the privilege upon the theory that compli-
ance would assert that the child produced is in fact [the child
sought]" because that fact was one "the State could readily
establish," 493 U.S. at 555, despite the fact that the govern-
ment could not have made such a finding until after the
production.1 Here, too, the government need not rely on any
communicative or testimonial aspect of Hubbell's act of pro-
duction; once it acquired the documents, their intrinsic value
evidently served its purposes quite adequately. The majority
imposes a wholly artificial and impermissible limitation on the
reasons for which the government "need not rely" on testimo-
nial implications of the act of production.
* * *
For a district judge, the challenge of the majority's view is
to determine the "quantum" of relative prosecutorial igno-
rance that triggers a self-incrimination violation. Prosecutors
know that businessmen keep business records (just as they
know that living humans have blood and literate persons have
handwriting); this is plainly too little information for the
majority. But evidently the prosecutor need not have ad-
vance knowledge of the details that he is interested in. See
Maj. at 54. Somewhere in that range is an imaginary line
__________
1 The majority appears to believe that this fact--the match of the
child produced to the child sought--was a "foregone conclusion"
because "presumably his social worker could testify as to his
identity." Maj. at 43 n.27. This indicates either that the majority's
definition of "foregone conclusion" includes things that only become
apparent after the production itself--in which case the majority has
no reason to disagree with this opinion--or that the majority
believes that there is some way in which one can "readily establish"
the identity of a person or thing that cannot yet be inspected.
which, unlike the equator, can never be fixed or defined with
clarity. Henceforth, therefore, 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.
Though recognizing that no other court has applied its
mind/body distinction explicitly, the majority claims that the
existing lower-court cases can be lined up to fit. If so, this
seems to me only because the factual detail of the cases is so
skimpy and the majority's test so elastic. And to the extent
that the cases can fairly be viewed as embracing the majori-
ty's readiness to squeeze production immunity into a simple
"foregone conclusion" analysis, they miss the point. "Fore-
gone conclusion" is just one species of one part of the
doctrinal structure the Supreme Court has set out; the
majority's obsession with that phrase diverts its focus from
the key issue, the presence (or absence) of "testimonial"
incrimination.
Let us return to blood and handwriting, the contexts for
the key decisions underlying Fisher. Of course live humans
have blood; of course literate humans have handwriting.
These propositions are virtually true by definition. But the
interesting data from blood and handwriting sample--blood
type, DNA information, handwriting idiosyncrasies--are
characteristically unknown to the government in advance.
The admissibility of these data stems not from the govern-
ment's advance knowledge of the obvious, but from two
propositions: (1) the critical information extracted from the
witness (DNA and blood type, handwriting idiosyncrasies) is
non-testimonial in character, see Fisher, 425 U.S. at 409, and
(2) the prosecutor's knowledge of the link between the wit-
ness, on the one hand, and the blood and the handwriting, on
the other, is independent of the communications that are
implicit in the witness's giving blood or handwriting. Here,
similarly, the documents' informational content (the equiva-
lent of the DNA, etc.) is non-testimonial in character, and the
Independent Counsel is interested in the documents' link to
the witness only insofar as it is shown by the contents of the
documents.
* * *
Sensibly construed, the act of production doctrine shields
the witness from the use of any information (resulting from
his subpoena response) beyond what the prosecutor would
receive if the documents appeared in the grand jury room or
in his office unsolicited and unmarked, like manna from
heaven. See DOJ Amicus Br. at 42; Alito, supra, at 59-60.
The prosecutor would in such a case not be able to identify,
verify someone's control over, or authenticate the documents
except to the extent their own contents--or other sources--
did so. He would thus make no use of any testimonial aspect
of the act of production. Yet, like DNA and handwriting
idiosyncrasies, the contents would themselves be unprotected,
except to the extent that deciphering might depend on the
context of the subpoena--the information conveyed by the
suspect's implicit matching of them with the subpoena de-
scription.
This distinction between contents and production is appar-
ently missed by the majority. Its first hypothetical of the
murder weapon claims that this "manna from heaven" theory
would allow the government to compel a suspect "to incrimi-
nate himself verbally" by revealing the location of the murder
weapon. But in the majority's hypo, the weapon is obviously
the fruit of poisoned testimony: a revelation under compul-
sion. A more apt instance would be if a suspect had previous-
ly--without compulsion--written down the location in his day
planner, and the government subpoenaed the planner. The
production of the day planner, like the production of a
missing child, is compulsory but non-testimonial. The much
more harmful contents are obviously testimonial, but they are
not the fruit of any unlawful compulsion (so long as the
government's use is independent of the context of the subpoe-
na).2
__________
2 The majority's second hypothetical, see Maj. at 62-63, is too
imprecise to bear much analysis, but if it posits that the government
in fact relies upon the communication implicit in the defendant's
delivery of the murder weapon to link it to him, then that weapon
must of course be excluded. Moreover, the hypothetical subpoena
On remand the only question should be whether the Inde-
pendent Counsel complied with the limits set by the above
principle. Accordingly, I dissent on this issue.
__________
might well be invalid for being "unreasonable or oppressive," Fed.
R. Crim. P. 17(c)--a defect unrelated to self-incrimination.