Was Hubbell Case About Getting Justice or Getting Even?

Webster L. Hubbell finally won a round. In a recent 8-1 opinion, the U.S. Supreme Court overturned his misdemeanor tax conviction because the independent counsel’s office violated Hubbell’s privilege against self-incrimination. Unfortunately, the victory does nothing for Hubbell because his conviction had resulted in no jail time or fine. But the court’s decision does strengthen the constitutional right in an important way. It also presents a disturbing view of how the independent counsel’s office went about its work under Kenneth W. Starr.

Anyone who likes puns but does not like Starr can have fun with the court’s language. The “privilege,” Justice John Paul Stevens wrote, “was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him. Such was the process of the ecclesiastical courts and the Star Chamber.”

And such was the process, the Supreme Court said, that Starr used to build his case against Hubbell, formerly a confidant of President Bill Clinton, a partner of Hillary Rodham Clinton at the Rose Law Firm in Little Rock and the No. 3 official at the Justice Department. So you could say, in a roundabout way, the Star Chamber has led to the Starr Chamber. All right, a pun is just a pun, not law. But for some, words like “Star Chamber,” “compulsion” and “incriminate” are nearly all the vocabulary anyone would need to explain why the whole Whitewater business went astray.

It could not have been easy for Starr and his aides to do their job while in the cross hairs of the Clinton public-relations artillery. Nor do I believe Starr is “evil” or the agent, even unwitting, of “A Vast Conspiracy,” as Jeffrey Toobin called his book about the investigation.

But that’s not enough to earn a gold watch. Without much distortion, the unending controversy over the independent counsel’s office during Starr’s tenure can be distilled to one question: Did its members lose sight of their professional responsibilities as prosecutors? Primary among these responsibilities is the need for self-restraint. No matter how badly you want to get your man, no matter how much of an errant knave you think he is, the means you use, and the incidental harms they may cause, have to be balanced against the ends you seek. Or, put another way, prosecutors must not get carried away by their own sense of the righteousness of their goals. You don’t have to be James Carville to raise such issues. Even those who have had it up to here with Clinton-style dissembling have reason to wonder whether Starr’s office forgot this lesson. Exhibit A may be the case against Hubbell.

It is hard to have sympathy for Hubbell. In a December 1994 deal, he pleaded guilty to mail fraud arising out of his Rose Law Firm work and promised to cooperate with the Whitewater investigation. He was sentenced to 21 months in prison and served 18, three of those in a Washington, D.C., halfway house. Starr’s office soon grew suspicious that Hubbell had not revealed all he knew about the Clintons and issued a subpoena to produce a large volume of financial information. Hubbell refused, citing his privilege against self-incrimination. Starr countered with a grant of immunity, which meant Hubbell’s response could not be used to prosecute him. Hubbell then had to produce his records or face contempt of court charges. He handed over 13,120 pages of documents.

Starr was looking for proof that Hubbell had received hush money. When, as it happened, Hubbell’s papers provided unexpected evidence of possible tax crimes, Starr indicted not only Hubbell, but also his wife. (The charge against her was later dismissed.) Hubbell acknowledged his immunity did not protect the contents of his papers because they had been prepared voluntarily. But he argued that because Starr did not know the papers even existed until Hubbell was compelled to produce them, Starr could not use them to build a case. It was as though Starr had said: “I have no idea what you’ve got hidden away in your closets, but let me see everything there because, for all I know, I may find evidence of some crime or other.” Hubbell argued the Constitution did not allow prosecutors to do that.

The Supreme Court agreed. It ruled that Starr’s office, in proving its case, could not even indirectly use papers Hubbell was forced to deliver. Hubbell’s “act of production had a testimonial aspect, at least with respect to the existence and location of the documents sought by the government’s subpoena,” the court wrote. The grant of immunity would prevent use of the papers against Hubbell “unless the government proves that the evidence it used in obtaining the indictment and proposed to use at trial was derived from legitimate sources ‘wholly independent’ ” of Hubbell’s compelled disclosure. Starr admitted he could not prove this. He knew about the papers--and the alleged crime--only because Hubbell had been compelled to produce them.

The broader implication of the court’s decision is important. To use the popular metaphor, the government may not conduct a “fishing expedition” in the hope of netting proof of a crime it had previously known nothing about.

What the Hubbell tax prosecution tells us about the work of Starr’s office may be even more important than the court’s protection for the privilege. Why did Starr’s team bring the tax case in the first place? Hubbell had already served time. He had been disbarred, disgraced and financially ruined. Whatever money he owed for taxes, assuming he is ever able to pay it, can be pursued--with interest and penalties--in a civil proceeding. So why indict him again?

True, Starr may have had reason to believe Hubbell had reneged on his promise to cooperate in the Whitewater investigation and that, in exchange for his silence, Hubbell had received hush money disguised as consulting contracts. But even assuming Hubbell was part of a stonewall strategy, Starr had no reasonable expectation that a tax case would make him cooperate where harsher measures had failed. We are left with the inference that the independent counsel’s office indicted both Hubbell and his wife because Hubbell had failed to incriminate the Clintons, in short, it decided to inflict one more legal thrashing to a guy who was already crushed because--well, because it could. Why not?

If that’s true, we have to ask whether the many allegations over the years that Starr’s office employed excessive or even vindictive prosecutorial tactics against others--including Susan H. McDougal, Monica S. Lewinsky, Marcia V. Lewis and several lesser Arkansas figures--now deserve greater credence and concern.

Of the books so far written about Starr’s work, “Truth at Any Cost,” by Susan Schmidt and Michael Weisskopf, is the title that may best capture the investigation’s dominant motif. Truth is what the Starr team was after, and, most often, that’s a good thing. But not at any cost. We give prosecutors immense power, then rely on their self-control not to use their giant strength like tyrants.

It comes down to this: The character of those who enforce the criminal law is the single most important guarantee of fairness. What Hubbell’s case reveals about Starr’s office is, at best, a serious lack of proportionality. At worst, though, Hubbell’s case suggests the presence of vindictive motives, a willingness to use the vast powers of the state not to get justice but to get even.