- The Washington Times - Monday, December 27, 1999

The Clinton administration has asked to join independent counsel Robert W. Ray's Supreme Court argument to revive Webster L. Hubbell's indictment involving payments he got while a potential Whitewater witness.
The Justice Department decision to go to the highest court to fight Hubbell on a technical issue contrasts with accusations that hundreds of thousands of dollars in the case were "hush money" to buy his silence.
Hubbell, a former associate attorney general and longtime golfing buddy of President Clinton, could be sent to prison for 44 years if the accusations hold up.
A White House spokesman had no comment and Hubbell's lawyer, John W. Nields Jr., did not return a call.
Although the court has not yet ruled, justices are expected to grant the friend-of-the-court request filed by Solicitor General Seth P. Waxman, a Clinton appointee as the government's top courtroom lawyer.
Mr. Waxman told the justices that Mr. Ray consented to share his time, offering 10 minutes of the half hour reserved for the independent counsel at the hearing scheduled for Feb. 22.
The Independent Counsel Statute specifically allows the Justice Department to request permission to file friend-of-the-court briefs and argue legal issues arising in an independent counsel prosecution. The law has expired, but prosecutions and investigations begun while it was in force may continue.
In its motion to join oral arguments, the Justice Department said the refusal of lower courts to rebuff Hubbell's Fifth Amendment claims of immunity for documents he supplied under subpoena could seriously endanger other criminal cases unrelated to Whitewater. The lower court rulings could end the case because any trial would have to proceed without using the documents or information obtained by following leads from the papers.
"The judgment of the court of appeals should be reversed" and the case remanded to the lower courts for prosecution, Mr. Waxman's petition said.
At issue is whether prosecutors must disclose with "reasonable particularity" the content of documents they subpoena.
Under a court order granting him immunity "to the extent allowed by law," Hubbell produced 13,120 pages of documents with expectations their contents could not be used against him.
When the 10-count indictment against Hubbell, his wife and two advisers was dismissed, the action was portrayed as ending any chance of proving the charge the payments were "hush money" payoffs from other Clinton supporters.
Hubbell said that, after serving 16 months in prison for mail fraud and tax evasion, he was being pressured by independent counsel Kenneth W. Starr to lie about friends.
They "can indict my dog. They can indict my cat. But I'm not going to lie about the president … the first lady or anyone else," Hubbell said in proclaiming his innocence on April 30, 1998, when he was charged with failing to pay more than $894,000 in taxes, interest and penalties, committing fraud and conspiring with the other three defendants.
Hubbell is a former law partner of first lady Hillary Rodham Clinton's, as well as a friend of the president's.
The indictment said individuals at the White House suggested helping Hubbell find work when he resigned under fire in 1994 as associate attorney general. A spokesman for Mr. Starr said Hubbell "performed little or no work" for some of the hundreds of thousands of dollars he was paid as a consultant.
Justice Department lawyers say that since Hubbell had long ago voluntarily prepared work papers, bills and other files, there was no Fifth Amendment problem in the grand jury's use of them.
The district court dismissed the indictment, upholding Hubbell's claim he was being compelled to testify against himself by revealing to a prosecutor or grand jury the existence of specific documents.
The court of appeals held that the contents of the papers were not protected, but directed the trial court to examine more closely Hubbell's claim that evidence developed from leads in the documents are tainted and inadmissible.
The independent counsel's office appealed that decision to the Supreme Court, which is expected to decide the case by June.

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