High Court Throws Out Hubbell Tax Charges

The Supreme Court on Monday threw out tax charges brought against former Justice Department official Webster L. Hubbell by then-independent counsel Kenneth W. Starr, ruling that the prosecutor violated the Clinton confidant’s right against self-incrimination.

After he was promised legal immunity, Hubbell was forced to turn over 13,120 pages of documents and business records to Starr’s office.

Prosecutors were looking for evidence that suggested Hubbell had received “hush money” from the president’s friends for keeping silent about possible involvement of the president and First Lady Hillary Rodham Clinton in illegal activities in the Whitewater scandal.

Finding none, they instead indicted Hubbell, the former No. 3 official in the Justice Department, for not paying taxes on consulting fees.

Hubbell claimed that he was in debt and could not pay the taxes on time because he had been imprisoned for bilking his partners at the Rose Law Firm in Little Rock, Ark. He also challenged the tax indictment as unfair and unconstitutional.

By a vote of 8 to 1, the Supreme Court agreed Monday.

Justice John Paul Stevens said that Hubbell had been forced to build a case against himself by assembling the huge mass of private records. The government cannot engage in a “fishing expedition” by forcing citizens to turn over masses of material in hopes prosecutors will find incriminating evidence, he said.

“The documents did not magically appear in the prosecutor’s office like ‘manna from heaven,’ ” Stevens said in his opinion in the case (United States vs. Hubbell, 99-166). “They arrived there only after [Hubbell] asserted his constitutional privilege against self-incrimination [and] received a grant of immunity.” Only Chief Justice William H. Rehnquist dissented in a brief statement.

Monday’s ruling marked the second time that the justices rebuked Starr’s office for overreaching. Two years ago, the court in a Rehnquist opinion turned away Starr’s demand for the private notes kept by a lawyer for late deputy White House counsel Vincent Foster.

In an interview with Associated Press, Hubbell called the decision “a nice victory, but it’s even a better victory for the Constitution. We’ve always felt we were right on this issue.”

Starr, who has resigned as independent counsel, earlier had won a conviction against Hubbell, not for crimes related to Whitewater, but for overbilling his Rose Law Firm partners. Before and after his prison term, Hubbell received a series of generous consulting contracts.

Although the 5th Amendment is commonly referred to as giving a right against self-incrimination, its words are not broad. It says, “No person . . . shall be compelled in any criminal case to be a witness against himself.”

In 1976, the court ruled, this meant only that people may not be forced to speak against themselves. A suspect can be forced to give fingerprints, blood samples, hair samples or business records to prosecutors.

At the same time, the justices have said that people cannot be forced to create and assemble records that prosecutors are not aware of. Otherwise, the government could ask for voluminous records and force a person to build a case against himself.

“The assembly of those documents was like telling an inquisitor the combination of a wall safe,” Stevens wrote.

In a concurring opinion, Justices Clarence Thomas and Antonin Scalia said that they favored a return to the older notion that the 5th Amendment protects people against being forced “to furnish incriminating physical evidence” against themselves. In a future case, they said, they will seek the expanded constitutional protection.

The ruling is not the first time, however, that a White House confidant has benefited from the 5th Amendment.

After the Iran-Contra scandal, former Reagan White House officials John M. Poindexter and Oliver L. North were convicted by a jury. Their convictions were overturned by a court of appeals, however, on grounds that their forced public testimony before Congress may have influenced jurors.

In a second but narrow criminal law decision, the justices overturned the 30-year prison terms given to five Branch Davidians who survived the 1993 siege and fire near Waco, Texas, that killed about 80 cult members.

A jury convicted them of using a gun during a violent incident, which carried a five-year prison term. The sentencing judge found the weapon was actually a “machine gun,” which carried a 30-year term.

In a unanimous opinion, the high court said that the machine gun offense is a separate crime. Therefore, a defendant can be sentenced under its harsh terms only if the jury convicts the person of that offense.

During the trial, the jury was asked to focus only on whether the defendants used guns, not whether the weapon was a machine gun.

The court’s opinion (Castillo vs. United States, 99-658) does not void the convictions for the five defendants but requires a new sentencing hearing.