- The Washington Times - Tuesday, June 6, 2000

The Supreme Court yesterday voided Webster L. Hubbell's misdemeanor guilty plea to tax charges in the Whitewater investigation, saying prosecutors improperly used as evidence financial records he turned over in an immunity deal.

In an 8-1 decision upholding an appeals panel, the high court said the independent counsel's office used as a basis for its prosecution records that Mr. Hubbell produced under a limited grant of immunity.

The court said use of the documents violated his constitutional right against self-incrimination.

"The documents did not magically appear in the prosecutor's office like 'manna from heaven,' " wrote Justice John Paul Stevens for the majority. "They arrived there only after [Mr. Hubbell] asserted his constitutional privilege, received a grant of immunity" and gave prosecutors "an accurate inventory of the many sources of potentially incriminating evidence sought by the subpoena."

"We have no doubt the constitutional privilege against self-incrimination protects the target of a grand jury investigation from being compelled to answer questions designed to elicit information about the existence of sources of potentially incriminating evidence," he wrote.

Justice Stevens said prosecutors did not show "any prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents ultimately produced" by Mr. Hubbell.

"The government cannot cure this deficiency through the overbroad argument that a businessman such as [Hubbell] will always possess general business and tax records," he wrote. "The Fifth Amendment provides that '(n)o person … shall be compelled in any criminal case to be a witness against himself.' The key word at issue in this case is 'witness.' "

The opinion, affirming a ruling by a three-judge panel of the U.S. Circuit Court of Appeals for the D.C. Circuit, was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, David H. Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen G. Breyer.

Chief Justice William Rehnquist dissented, saying in a one-sentence statement he would reverse the appeals court decision.

Mr. Hubbell called the decision a "victory for the Constitution." His attorney, John W. Nields Jr., said if the court had ruled the other way, "prosecutors all over the country could begin their investigations by serving broad document subpoenas on their subjects and just looking through the documents to see what they can find."

In June 1999, Mr. Hubbell pleaded guilty to a misdemeanor tax charge and to a felony for concealing legal work he did for a now-defunct Arkansas land deal. The plea ended independent counsel Kenneth W. Starr's investigation of financial irregularities involving Whitewater Development Corp. an Arkansas land deal involving President Clinton and first lady Hillary Rodham Clinton.

His agreement with Mr. Starr said the guilty plea in the misdemeanor charge would remain in effect only if Mr. Starr was successful in arguing the case before the Supreme Court. The agreement said if the high court refused to hear the matter or if Mr. Starr was unsuccessful, prosecutors would dismiss the guilty plea.

Mr. Hubbell's guilty plea to the felony count is not affected. He was sentenced in June 1999 to a year's probation after entering the two guilty pleas.

The appeals court ruled in January that Mr. Starr could prosecute Mr. Hubbell on the tax charge, but set a high standard for use by prosecutors of Hubbell's own financial papers, which he was required to produce under the limited grant of immunity.

Mr. Hubbell, longtime friend of Mr. Clinton's and former law partner with Mrs. Clinton, signed the deal with Mr. Starr to avoid prison in exchange for admitting he lied about legal work he did for an Arkansas real-estate project on which he worked with Mrs. Clinton.

He pleaded guilty to a felony count of covering up his legal representation of Castle Grande, a real-estate venture near Little Rock that eventually failed, and to misdemeanor tax evasion.

The former associate attorney general served 16 months in prison in a 1994 guilty plea to cheating his partners at Little Rock's Rose Law Firm of $482,410 in phony billings.

Mr. Hubbell and his wife were indicted for failing to pay $894,000 in taxes, interest and penalties. The indictment said they spent $750,000 between 1994 and 1997 on personal items, including clothing and accessories, private-school tuition, and domestic help, and made cash withdrawals of $60,000. During that period, they paid less than $30,000 in taxes, although their income exceeded $1 million.

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