The Truth about the Hubbell Tax Case
The Landmark Legal Foundation
July 2nd , 1998 Mark R . Levin
Yesterday , Federal District Judge James Robertson , a Clinton appointee , dismissed multiple tax fraud indictments against Webb Hubbell , his wife Suzy , and related indictments against the Hubbells ' lawyer and their accountant . Among other things , the judge ruled that Independent Counsel Kenneth Starr improperly used documents Hubbell turned over to him under a grant of limited immunity . Judge Robertson wrote , in part : " Mr . Hubbell was thereby turned into the primary informant against himself in violation of the Fifth Amendment " right against self - incrimination . Judge Robertson also ruled that the Special Division Panel , which is an arm of the District of Columbia Court of Appeals , lacked the authority to expand Starr ' s investigation into Hubbell ' s alleged tax violations .
PRODUCTION IMMUNITY
Judge Robertson is wrong as a matter of law. Starr granted Hubbell production immunity , requiring Hubbell to turn over his records , in response to a subpoena . This is a very narrow grant of immunity , that simply prevents the government from using the act of production against Hubbell . For instance , if Hubbell provides Starr with his own tax returns , and other documents , that suggest fraudulent conduct , Starr cannot use those documents to indict Hubbell . But Starr can use Hubbell ' s documents as a road map . He can ask the IRS to provide him with a copy of Hubbell ' s tax returns ; he can subpoena records from others who may have assisted Hubbell ; and he can secure sworn testimony from those familiar with Hubbell ' s conduct .
Unlike use immunity , which is granted to compel or enable someone to testify before the grand jury without violating their Fifth Amendment right against self - incrimination , production immunity applies to documents that already exist . Starr is free, like any federal prosecutor , to use those documents to gather additional information , and to pursue leads .
If Judge Robertson is right , and he is not , every time a person provides subpoenaed documents to a grand jury , and those documents reveal evidence of crimes , the grand jury would be unable to investigate those crimes . What are subpoenas for , but to uncover crimes ? What are grand juries for but to investigate possible crimes ?
LOWER COURT OVERRULING HIGHER COURT
Judge Robertson also took the extraordinary step of overruling a higher court asserting that the Special Division Panel -- which is an arm of the District of Columbia Court of Appeals -- lacked the authority to expand Starr ' s investigation into Hubbell ' s tax filings without first seeking permission from Attorney General Janet Reno . Since when does a lower court judge have the authority to overrule a higher court ' s decision ?
If I were a betting man , I would bet heavily that Judge Robertson ' s bizarre holding will be overturned.
Mark R . Levin , President , The Landmark Legal Foundation
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