UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

HUBBELL, WEBSTER L.


98-3080b

D.C. Cir. 1999


*	*	*


Opinion for the Court filed Per Curiam.*


Separate opinion concurring in Part I filed by Circuit  Judge Wald.


Separate opinion dissenting from Part I filed by Circuit  Judge


Separate opinion dissenting from Part II filed by Circuit  Judge
Williams.


Per Curiam: All defendants--Webster L. and Suzanna W.  Hubbell, Michael
C. Schaufele, and Charles C. Owen--moved  in the district court to
dismiss an indictment charging tax  evasion and related crimes on the
ground that the indictment  was beyond the prosecutorial jurisdiction
of Independent  Counsel Kenneth W. Starr. In addition, Webster Hubbell
 moved for dismissal on the theory that prosecution necessari- ly
would depend on evidence produced under compulsion and  used in
violation of the Fifth Amendment and the immunity  granted him under
18 U.S.C. s 6002. The court granted both  motions. 11 F. Supp. 2d 25
(D.D.C. 1998). We reverse both  decisions and remand for proceedings
consistent with this  opinion.


I. Jurisdiction


On August 5, 1994 this court's Special Division for the  Purpose of
Appointing Independent Counsels ("Special Divi- sion"), upon request
from the Attorney General, appointed 




__________

n * Judge Williams wrote Part I; Judge Wald wrote Part II.


Kenneth W. Starr as Independent Counsel. It gave Indepen- dent Counsel
Starr jurisdiction to investigate


whether any individuals or entities have committed a  violation of any
federal criminal law, other than a Class B  or C misdemeanor or
infraction, relating in any way to  James B. McDougal's, President
William Jefferson Clin- ton's, or Mrs. Hillary Rodham Clinton's
relationships  with Madison Guaranty Savings & Loan Association, 
Whitewater Development Corporation, or Capital Man- agement Services,


as well as


other allegations or evidence of violation of any federal  criminal
law, other than a Class B or C misdemeanor or  infraction, by any
person or entity developed during the  Independent Counsel's
investigation referred to above  and connected with or arising out of
that investigation


and, more specifically,


any violation of 28 U.S.C. s 1826, or any obstruction of  the due
administration of justice, or any material false  testimony or
statement in violation of federal criminal  law, in connection with
any investigation of the matters  described above.


The Special Division also gave the Independent Counsel  jurisdiction to
seek indictments against and to prosecute


any persons or entities involved in any of the matters  described
above, who are reasonably believed to have  committed a violation of
any federal criminal law arising  out of such matters, including
persons or entities who  have engaged in an unlawful conspiracy or who
have  aided or abetted any federal offense.


Finally, apparently summarizing the above grants, the Special  Division
ordered that the Independent Counsel have


prosecutorial jurisdiction to fully investigate and prose- cute the
subject matter with respect to which the Attor- ney General requested
the appointment of independent  counsel, as hereinbefore set forth,
and all matters and 


individuals whose acts may be related to that subject  matter,
inclusive of authority to investigate and prose- cute federal crimes
(other than those classified as Class  B or C misdemeanors or
infractions) that may arise out  of the above described matter,
including perjury, ob- struction of justice, destruction of evidence,
and intimi- dation of witnesses.


These grants of authority were under 28 U.S.C.  s 593(b)(1), a
provision of the Ethics in Government Act,  which calls on the Special
Division, on application of the  Attorney General, to "appoint an
appropriate independent  counsel and ... define that independent
counsel's prosecuto- rial jurisdiction." Besides that authority--and
authority to  expand an independent counsel's jurisdiction on
application of  the Attorney General, see id.; see also id. at s
592(c)(2)  (directing Attorney General to follow same procedure as to 
new information)--the Act authorizes an independent counsel  to ask
the Special Division to "refer" to him "matters related  to the
independent counsel's prosecutorial jurisdiction." 28  U.S.C. s
594(e). As a result of such a request, the Special  Division on
September 1, 1994 made a referral of matters  concerning Webster L.
Hubbell's billing and expense prac- tices while a member of the Rose
Law Firm. Hubbell pled  guilty to two felony counts concerning these
matters in  October of that year; in the plea agreement Hubbell prom-
ised to cooperate "by providing full, complete, accurate and  truthful
information" to the Independent Counsel about Madi- son, Whitewater,
and Capital Management (hereinafter collec- tively "Whitewater").


The Independent Counsel discovered in 1996 that Hubbell  apparently had
begun to receive substantial payments as  consulting fees in 1994.
According to the present indictment,  these payments included $100,000
from Hong Kong China  Limited (controlled by the Riady family through
the Lippo  Group) and $62,775 from Revlon.1 Not satisfied that Hubbell





__________

n 1 The relationship between these entities and potential targets of 
the Whitewater investigation should now be familiar. The Riady  family
knew and supported President Clinton from the 1980s, and 


had been fully cooperating, the Independent Counsel sought,  as he
says in his brief, "to determine whether a relationship  existed
between those payments and Mr. Hubbell's testimony  with respect to
Whitewater and Madison-related matters."


After the investigation had progressed considerably, the  Independent
Counsel sought another s 594(e) referral from  the Special Division.
It granted the referral on January 6,  1998, encompassing
prosecutorial jurisdiction over:


(i) whether Webster L. Hubbell or any individual or  entity violated
any criminal law, including but not limited  to criminal tax
violations and mail and wire fraud, re- garding Mr. Hubbell's income
since January 1, 1994, and  his tax and other debts to the United
States, the State of  Arkansas, the District of Columbia, the Rose Law
Firm,  and others; and


(ii) whether Webster L. Hubbell or any individual or  entity violated
any criminal law, including but not limited  to obstruction of
justice, perjury, false statements, and  mail and wire fraud, related
to payments that Mr. Hub- bell has received from various individuals
and entities  since January 1, 1994.


A federal grand jury indicted Hubbell and the other defen- dants on
April 30, 1998. The indictment alleged conspiracy,  mail and wire
fraud, and various tax offenses, all concerning  attempts to keep
Hubbell's income--including, in material  part, the consulting
fees--from creditors and the IRS.


On July 1, 1998 the district court granted defendants'  motion to
dismiss the indictment in its entirety as beyond the  authority of the
Independent Counsel. 11 F. Supp. 2d at 27.




__________

n contributed large sums to the Democratic National Committee in  the
1990s. See generally House Gov't Reform and Oversight  Comm., 105th
Cong., Campaign Finance Investigation Interim Re- port Chapter 4, Part
A (1998). Secret Service records indicate that  James Riady had made
several visits to the White House in the  days before the payment to
Hubbell was made. See id. at 14 n.94.  As for Revlon, it later
accommodated another potential witness in a  different litigation
involving possible targets of the Whitewater  investigation by


* * *


The threshold issue before us is the effect, if any, of the  Special
Division's January 6, 1998 referral order ("the refer- ral"). The
Independent Counsel argues that the referral is  either unreviewable
or is entitled to deference from this  court; defendants--and the
Department of Justice in its  amicus brief--argue that it is
irrelevant. No one suggests  that the indictment is beyond the scope


Referrals from the Special Division are authorized by 28  U.S.C. s
594(e), which provides: "An independent counsel  may ask the Attorney
General or the division of the court to  refer to the independent
counsel matters related to the  independent counsel's prosecutorial
jurisdiction, and the At- torney General or the division of the court,
as the case may  be, may refer such matters." The Supreme Court said
in  Morrison v. Olson, 487 U.S. 654 (1988), that "this provision  does
not empower the court to expand the original scope of  the counsel's
jurisdiction ... [but] simply to refer matters  that are 'relate[d] to
the independent counsel's prosecutorial  jurisdiction' as already
defined." Id. at 680 n.18.


The referral here, then, is simply an explicit determination  by the
Special Division that the original grant of jurisdiction  implicitly
included the matters referred. See In re Espy, 80  F.3d 501, 507 (D.C.
Cir. 1996); see also Morrison, 487 U.S. at  685 n.22. The Independent
Counsel argues for unreviewabili- ty of this determination by analogy
to what he regards as  comparable decisions of the Attorney General.
For such  unreviewable counterparts he points first to the decisions
of  the Attorney General and her subordinates to have "Main  Justice"
prosecute certain cases rather than a local U.S.  Attorney's Office
and second to the Attorney General's own  referral authority under s
594(e). In United States v. Tuck- er, 78 F.3d 1313 (8th Cir. 1996),
the Eighth Circuit found the  latter unreviewable, relying in part on
the analogy to the  Main Justice/U.S. Attorney allocation.


At least as applied to the Special Division, however, the  analogy does
not hold. Although the Supreme Court upheld  the independent counsel
provisions of the Ethics in Govern-


ment Act against constitutional challenge in Morrison v.  Olson, the
Court, in rejecting the attack on the statute's  grant of powers to
the Special Division, saw it as important to  say that the s 594(e)
power did not empower the Division to  expand the original grant of
jurisdiction. 487 U.S. at 680  n.18. If the constitutional balance
between the branches  requires this constricted reading of s 594(e),
it would be  startling (though not inconceivable) to find that Article
III  courts are powerless to enforce the boundary. No such  issues are
at stake in the parceling out of jurisdiction between  Main Justice
and the various U.S. Attorneys' offices. And  Tucker itself poses
somewhat different issues, as there the  executive branch--the one
most jeopardized by the indepen- dent counsel provisions--is the one
exercising the s 594(e)  power. In Tucker, moreover, the Eighth
Circuit also relied  upon particular legislative history indicating
that Congress  intended the Attorney General's s 594(e) referrals to
be  unreviewable, see 78 F.3d at 1317-18, history not paralleled  as
to s 594(e) referrals by the Special Division. We there- fore find
nothing that overcomes the general presumption of  reviewability.


But the independent counsel alternatively asks for defer- ence to the
Special Division's s 594(e) referral. We initially  observe that it is
not clear in what constitutional capacity the  Special Division acts
in making a referral. The Independent  Counsel and the Department of
Justice as amicus see refer- rals as some sort of agency action;
defendants, like the  district court, appear to leave open the
possibility that the  proper analogy is to various other ancillary
functions per- formed by the judiciary--authorizing search warrants,
for  example.2 11 F. Supp. 2d at 30-31. Both analogies seem  fairly
(though not entirely) apt--as one might expect for a  constitutional
hybrid--but they lead us to the same result:  substantial deference.




__________

n 2 Although an argument that the Special Division's interpretation  of
the original grant's legal language is judicial action and presump-
tively unreviewable as law of the case could be at least facially 
plausible, see, e.g., Espy, 80 F.3d at 507, no party has taken such a 
position here.


Viewed as an agency, the Special Division appears to act  quite like
one glossing its own regulation--a situation in  which we usually
grant substantial deference. See Paralyzed  Veterans of America v.
D.C. Arena L.P., 117 F.3d 579, 584  (D.C. Cir. 1997) (deference to
agency interpreting its own  regulations at least equal to deference
under Chevron). De- fendants and the Department of Justice as amicus
would have  us reject deference on the ground that the Division
operates  without procedures for critique and comment by outsiders, 
especially by adversely affected parties. But the cases fre- quently
find deference in such safeguard-deprived circum- stances. See, e.g.,
Stinson v. United States, 508 U.S. 36  (1993) (commentary to
sentencing guidelines); Consolidation  Coal Co. v. Federal Mine Safety
and Health Review Comm'n,  136 F.3d 819 (D.C. Cir. 1998)
(interpretation implicit in  Commission's decision to bring
enforcement action); Nation- al Wildlife Fed'n v. Browner, 127 F.3d
1126, 1129 (D.C. Cir.  1997) (litigating position, as long as it is
agency's actual and  deliberated-upon view); Paralyzed Veterans, 117
F.3d at 581- 82 (supplement to DOJ's ADA Title III Technical


The Department of Justice goes on to characterize its chief,  the
Attorney General, as the entity actually responsible for  the initial
grant; from that assumption it reasons that Con- gress likely intended
no deference for the Special Division's  interpretations of the
initial s 593 grant (which is all that  s 594(e) referrals are). See
Martin v. Occupational Safety  and Health Review Comm'n, 499 U.S. 144,
158 (1991) (Con- gress may divide various powers as it wishes, subject
to  broader constitutional limitations). But the fact that the 
Attorney General initiates the appointment process and  makes an
initial suggestion of jurisdiction cannot be a basis  for withholding
deference to the Special Division: in the end,  the order appointing
the Independent Counsel and setting out  his jurisdiction is
articulated and issued by the Special Divi- sion as its own action.
See 28 U.S.C. s 593(b)(1); Paralyzed  Veterans, 117 F.3d at 585
(identity of actual regulation- drafter irrelevant once regulation is
"put out by [the latter  agency] as its own"). We therefore presume


Division's interpretations receive deference, see Martin, 499  U.S. at
151 ("[W]e presume that the power authoritatively to  interpret its
own regulations is a component of the agency's  delegated lawmaking
powers."), and we find no intent to  overcome that presumption.


Morrison, it is true, requires that "the jurisdiction that the 
[Special Division] decides upon must be demonstrably related  to the
factual circumstances that gave rise to the Attorney  General's
investigation and request for the appointment of  the independent
counsel in the particular case." 487 U.S. at  679. This sets out the
constitutional boundary for the Special  Division's initial action.
Even if we assume its extension to  the Division's later s 594(e)
interpretation of that grant,  nothing helpful to the Department's or
defendants' position  would follow. It would be a curious revival of
the discredited  doctrines of "constitutional fact" and
"jurisdictional fact" to  infer from the constitutionality of the
boundary that an  Article III court (as such) must draw it de novo.
See John  Dickinson, "Crowell v. Benson: Judicial Review of Adminis-
trative Determinations of Questions of 'Constitutional Fact,' "  80 U.
Pa. L. Rev. 1055, 1072-75, 1077-79 (1932) (explaining  logical errors
in doctrine now generally regarded as mori- bund);3 see also Oklahoma
Natural Gas Co. v. FERC, 28  F.3d 1281, 1283-84 (D.C. Cir. 1994)
(Chevron deference appli- cable even to questions of agency
jurisdiction and preemption  of state power). There is no claim by
defendants, moreover,  that if the disputed referral is within the




__________

n 3 In Dickinson's analysis the key error is to suppose, of a fact that
 is said to be a necessary basis of jurisdiction or of
constitutionality,  (1) that it may be known absolutely and (2) that
only judicial  apprehension of the fact can constitute that knowledge.
See id. at  1074. Indeed, as almost any issue could be characterized
as a  jurisdictional or constitutional one, this sort of reasoning
would  swallow deference whole. See id. at 1077-79; see also
Mississippi  Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S.
354, 381  (1988) (Scalia, J., concurring) ("To exceed authorized
application is  to exceed authority. Virtually any administrative
action can be  characterized as either the one or the other, depending
upon how  generally one wishes to describe the 'authority.' ").


would follow that the original grant was ipso facto outside the  zone
within which it was required to fall, i.e., "demonstrably  related" to
the Attorney General's request.


Defendants stress additional language in Morrison that,  they claim,
characterizes the referral power of the Special  Division as
"essentially ministerial." 487 U.S. at 681. This  simply misreads the
case--the language specifically refers to  the provisions listed in
its footnote 19: referral is not among  them.


The existence of alternative referring agencies, the Attor- ney General
and the Special Division, presents further defer- ence problems.
Compare, e.g., Rapaport v. OTS, 59 F.3d  212, 216-17 (D.C. Cir. 1995)
(no deference in Chevron context  if more than one agency given
authority) with id. at 220-22  (Rogers, J., concurring in the
judgment) (case-by-case deter- mination of deference in such
situations). Is a referral by the  Attorney General also entitled to
deference? We have seen  that she would not be interpreting her own
grant of jurisdic- tion--the key issue under Martin--but we do not
rule out  other possible grounds for deference or even
unreviewability.  See, e.g., Tucker, 78 F.3d at 1317-19 (legislative
history  indicates that referrals from Attorney General are not re-
viewable). Indeed, as Morrison's concern about the Special  Division's
power is far less applicable to a s 594(e) reference  by the Attorney
General (who would be voluntarily ceding her  own power), her power
here may not be limited to interpret- ing the original grant; any
review of her referral would then  be in an entirely different
context. As either entity may act  under s 594(e) only at the
initiative of the Independent  Counsel,4 the possibility of




__________

n 4 The statute also says that the Attorney General may refer a  matter
"on the Attorney General's own initiative," but then provides  that
the Independent Counsel "may accept such referral if the  matter
relates to the independent counsel's prosecutorial jurisdic- tion," 28
U.S.C. s 594(e), so that in this context the independent 


that the Independent Counsel can freely prevent. Further, a  grant by
one authority and denial by the other need not  necessarily constitute
a conflict: the phrase "may refer"  appears to include some discretion
to decline referral even  where the authority agrees with the proposed
interpretation  of the initial jurisdictional grant. Indeed, this
apparent dis- cretion suggests the possibility--on which we express no
 opinion--that Congress intended only a grant of referral to  be
authoritative.


Finally, the claim of zero deference would if accepted  render s
594(e)'s provision for referral by the Special Divi- sion meaningless.
We do not believe Congress enacted this  statutory procedure simply to
relieve the solitude of the  Independent Counsel's office.


The search warrant analogy--brought to mind by the  defendants' and the
Department's stress on the absence of  adversary procedures--is also
instructive. Although made ex  parte and resolving constitutional
questions, a determination  of probable cause by a federal magistrate
or state judge is  given "great deference." Illinois v. Gates, 462
U.S. 213, 236  (1983) (internal quotation omitted). And in this
context it is  quite plain that neither the allocation of the power to
an array  of entities nor the possibility of denial by one judge
before a  grant by another stands in the way of deference to any 
particular warrant actually granted.


Both analyses lead us to deference, but employ different  linguistic
formulations. An agency's interpretation of its own  regulation is
upheld unless "plainly erroneous or inconsistent"  with the
regulation, Bowles v. Seminole Rock & Sand Co., 325  U.S. 410, 414
(1945), while a search warrant is valid if the  magistrate had a
"substantial basis" for his finding of con- formity to the applicable
standard (probable cause). Gates,  462 U.S. at 238. Such formulations
do not necessarily con- 


__________

n counsel himself can unilaterally moot the relatedness issue by 
deciding not to proceed.


We note further that the Attorney General has taken no action  under s
594(e) in this case. The Independent Counsel did not ask  her for a
referral of the contested matters until October 9 of this  year--well
after the Special Division had already granted its refer- ral--and she
has not yet acted.


flict: each appears to assume a paradigm case rather differ- ent from
the Special Division's s 594(e) referral.


Although deference to an agency's interpretation of its  regulations
applies where it is simply applying the regulation  to a specific set
of facts, see, e.g., Consolidation Coal Co., 136  F.3d at 820-21, the
deference is plainly focused on the  agency's norm-defining role.


It makes sense to view the referral power thus, at least in  part.
Unlike a magistrate issuing a warrant, for example, the  Special
Division is not interpreting a single concept with an  elaborate
precedential pedigree and fairly well-established  outline: even key
terms (such as "related to") are, as terms of  art go, still novel and
quite ambiguous. Further, just it is far  easier for an agency to
develop and maintain a coherent  interpretive line if its legal
interpretations enjoy deference  from the scattered multitude of
judges who review its deci- sions, see Peter L. Strauss, "One Hundred
Fifty Cases Per  Year," 87 Colum. L. Rev. 1093 (1987) (arguing that
this value  supports the principle of Chevron deference to agency
inter- pretation of statutes), so deference may enable the Special 
Division to do so, as the thousands of magistrates and state  judges


On the other hand, to the extent these recurring concepts  are fleshed
out, the grant of referral also entails some of the  marshaling and
application of facts (or factual assertions) that  "substantial basis"
seems to assume and "plainly incorrect or  inconsistent" may overlook.
In fact, this element and the  norm-defining element discussed above
appear inextricably  entwined in the Special Division's referral
decision.


We could perhaps attempt to articulate some multiheaded  standard to
govern review of the referral. But this would be  a futile exercise of
judicial ingenuity. As Judge Posner has  noted, there is deference and
non-deference, but further  multiplication of flavors "reflects the
lawyer's exaggerated  faith in the Word." United States v. McKinney,
919 F.2d  405, 422 (7th Cir. 1990) (Posner, J., concurring); see also 
NLRB v. Universal Camera Corp., 179 F.2d 749, 753 (2d Cir.  1950) (L.
Hand, C.J.), vacated, 340 U.S. 474 (1951). That is to 


say, we believe that a s 594(e) referral from the Special  Division
falls into the "deference" category. The common  thread of deference
formulations being reasonableness, see  McKinney, 919 F.2d at 423,5 we
believe that the Special  Division's decision to refer must be upheld
if reasonable and  rejected if not.


* * *


The statute sets a minimum on the scope of the jurisdiction  the
Special Division is to grant. We do not think the Special  Division's
referral is unreasonable even if compared to this  minimum. Indeed, we
find the indictments themselves within  the statutory minimum
jurisdiction even without deference to  the referral.


The statute begins by directing the Special Division to  "assure that
the independent counsel has adequate authority  to fully investigate
and prosecute the subject matter with  respect to which the Attorney
General has requested the  appointment of the independent counsel, and
all matters  related to that subject matter." 28 U.S.C. s 593(b)(3)
(em- phasis added). As we shall see, there is an ambiguity in the 
definition of that core "subject matter," but, under the sen- tence as
a whole, the Independent Counsel may prosecute  anything "related to"


The statute continues:


Such jurisdiction shall also include the authority to inves- tigate and
prosecute Federal crimes ... that may arise  out of the investigation
or prosecution of the matter with  respect to which the Attorney
General's request was 




__________

n 5 More specifically, we have said that "we very much doubt that  we
would defer to an unreasonable agency interpretation of an  ambiguous
regulation." Paralyzed Veterans, 117 F.3d at 584 (em- phasis in
original). Further, although "substantial basis" has not  received
much specific elaboration, the Supreme Court also formu- lated the
test as "substantial evidence," Massachusetts v. Upton,  466 U.S. 727,
728 (1984), which of course simply refers us to the  position of a
"reasonable factfinder," Allentown Mack Sales and  Service v. NLRB,
118 S. Ct. 818, 828 (1998).


made, including perjury, obstruction of justice, destruc- tion of
evidence, and intimidation of witnesses.


Id. The Independent Counsel may therefore also prosecute  crimes that
"arise out of the investigation or prosecution of"  the core "subject
matter."


As we noted, there is an ambiguity in just what the core  jurisdiction
is. The Attorney General's initial application to  the Special
Division described the subject matter of the  appointment as "whether
any violations of federal criminal  law were committed by James B.
McDougal or any other  individual or entity relating to Madison
Guaranty Savings &  Loan Association, Whitewater Development
Corporation, or  Capital Management Services, Inc." Application for
the Ap- pointment of Independent Counsel (1994) (emphasis added).  It
appears unusual in defining the original "core" as criminal  activity
"relating to" the narrowly conceived subject--White- water.6 One could
argue that the "related to" phrases com- pound: the Independent
Counsel would thus be entitled to  investigate and prosecute crimes
"related to" any crimes  "relating to" Whitewater (or, under the
second statutory  sentence, "aris[ing] out of the investigation" of


We think in fact such piling on adds little. "Relating to"  and "arise
out of" are themselves such amorphous phrases as  to make their
addition (or multiplication) virtually meaning- less.




__________

n 6 Both the former Special Prosecutor's core jurisdiction and the 
Attorney General's suggested core jurisdiction for the Independent 
Counsel--which the Special Division adopted as the first jurisdic-
tional clause of its original grant--tracked this expansive version of
 "subject matter." See Application for the Appointment of Indepen-
dent Counsel, (Suggested) Statement of Jurisdiction of Independent 
Counsel ("whether any individuals or entities have committed a 
violation of any federal criminal law ... relating in any way to 
James B. McDougal's, President William Jefferson Clinton's, or  Mrs.
Hillary Rodham Clinton's relationships with" Whitewater)  (emphasis


Rather we think the minimum statutory space must be  read, as we have
said in the past, in accord with the purposes  of the statute. Its
"central purpose ... is to permit the  effective investigation and
prosecution of high level govern- ment and campaign officials." United
States v. Wilson, 26  F.3d 142, 148 (D.C. Cir. 1994) (emphasis added).
Discussing  the "related to" language of s 593(b)(3), we noted that
"the  scope of a special prosecutor's investigatory jurisdiction can 
be both wide in perimeter and fuzzy at the borders." Id.  The word
"relation" thus comprises more than identical twins.  And just as a
person is "related" not only to his parents and  children, but to
grandchildren and grandparents,7 the fact  that a crime is in some
sense a verbal step or two away from  the core crime cannot render it


More concretely, the jurisdiction to look into matters "re- lated to"
the core areas of initial inquiry must allow the  Independent Counsel
enough leeway to investigate and prose- cute such matters as are
appropriate for him to effectively  carry out his mandate. We think
such effectiveness cannot  be secured unless the Independent Counsel
is at least able to  pursue crimes ancillary to the commission or
concealment of  crimes in the core area.


The rationale for jurisdiction in this case is the same under  either
the "related to" or "arising out of" phrases in the  statute. If
payments Hubbell received beginning in 1994  were indeed hush money to
secure Hubbell's silence vis--vis  Whitewater, the possible
obstruction of justice therein would  certainly be a crime "relating
to" Whitewater, for it would be  an attempt to cover up the wrongdoing
afterward. Both the  Department of Justice and the defendants admit as
much.  They nevertheless argue that the tax charges here, as well as 
wire fraud and mail fraud aimed at keeping the income from  the IRS
and others who would have resulting claims, are not  like the "arising
out of" crimes specified in s 593(b)(3): "per- jury, obstruction of
justice, destruction of evidence, and intim- idation of witnesses."
The latter, argues DOJ, involve "con-




__________

n 7 We do not, however, express an opinion on the applicability of 
this metaphor beyond the second generation.


duct tending to impede the investigation and prosecution of  other
crimes." DOJ Amicus Br. at 34. But any criminal  conduct that could
hide the hush money or amplify its value  tends to impede
investigation and prosecution of the matter  being hushed up. The less
disclosure of the payments, the  less chance that they and their
nature will come to light; and  the more value Hubbell can squeeze
from hush money (by  nonpayment of taxes or the like), the more chance
it will  succeed in preventing his cooperation.8


The dissent, disputing these concerns, first argues that the  Riady and
Revlon payments were in fact disclosed in Hub- bell's 1994 tax return.
See Dissent at 13. This appears  correct. But it does not seem
unreasonable to believe that  the other, unenumerated, "consulting
fee" payments--made  that year and after--were of a piece with the
specifically  detailed ones.9 Further, the dissent's apparent belief
that no  one "could have foreseen" Hubbell's tax evasion scheme, 
Dissent at 14, is hard to grasp. Surely Hubbell could have 
anticipated the advantages of sheltering any hush money  from the IRS.
And at every point where he faced a choice  (presumably continuously),
he could weigh the benefits of  remaining silent with those of
speaking up. Tax evasion,  both in anticipation and execution, would
amplify the expect- ed benefits of silence and thereby increase the
chances that  the underlying truth--if in fact something was


Indeed, the history of "aris[ing] out of" indicates a rather  liberal
view as to the prosecution of downstream matters. 




__________

n 8 We note that the Independent Counsel, apparently focused on  the
particular procedural implications of "arise out of," did not fully 
articulate in the district court his theory of the tax violations as 
themselves reinforcing the cover-up.


9 We also realize that not all the tax violations may specifically 
concern the possible hush money payments--that is, the "consulting 
fees." It would be ludicrous, however, if the Independent Counsel,  in
bringing a nondisclosure and evasion case materially concerning  such
payments, were not able to present the full pattern of nondis- closure
and evasion.


The Watergate Special Prosecutor, acting under jurisdiction  granted
by regulation to pursue offenses "arising out of" the  Watergate
burglary or "offenses arising out of the 1972  Presidential Election
for which the Special Prosecutor deems  it necessary and appropriate
to assume responsibility,"10 ob- tained convictions of H.R. Haldeman,
John D. Ehrlichman,  and John N. Mitchell for their actions in
attempting to  conceal a cover-up, i.e., to cover-up a
cover-up--specifically,  for perjury in making false denials of their
efforts to cover up  the Watergate break-in (one such effort being
hush money  payments to the burglars and E. Howard Hunt, Jr.). See 
United States v. Haldeman, 559 F.2d 31, 59 (D.C. Cir. 1976).  Though
the language is different, we find it implausible that  Congress
intended to give the Independent Counsel a nar- rower jurisdiction
than was exercised by that office's most  salient model.


The defense, of course, argues that we cannot consider the  hush money
hypothesis at all. Unlike Watergate, the prose- cutor has not yet
charged anyone named in this indictment  with the suggested
first-level obstruction of justice. Seeming  to regard non-indictment
as the equivalent of true and com- plete exoneration (i.e., better
than acquittal, which is consis- tent with a case from which the jury
could have found guilt),  defendants effectively claim that unless the
bridge crime is  charged (i.e., the obstruction of justice which is
invoked by  the Independent Counsel), and presumably then proven at 




__________

n 10 The mandate, in full, stated that:


The Special Prosecutor shall have full authority for investigat- ing
and prosecuting offenses against the United States arising  out of the
unauthorized entry into Democratic National Com- mittee Headquarters
at the Watergate, all offenses arising out  of the 1972 Presidential
Election for which the Special Prosecu- tor deems it necessary and
appropriate to assume responsibili- ty, allegations involving the
President, members of the White  House staff, or Presidential
appointees, and any other matters  which he consents to have assigned
to him by the Attorney  General.


38 Fed. Reg. 30,738-39 (1973).


least in the sense of a case on which reasonable jurors could  find
guilt, it must be assumed completely non-existent.


This requires too much. It is true that if the Independent  Counsel had
no evidentiary grounds at all for believing that  the payments were
obstructive--or, indeed, if the evidence  clearly showed that the
payments were not obstructive--he  could not rely on such a
jurisdictional theory. But defen- dants' claim is implausible. The
Department of Justice itself  has recognized that prosecution of a
pure non-disclosure  crime is suitable when it lacks enough evidence
to prosecute.  Its Manual, for example, allows prosecutors to use 18
U.S.C.  s 1001 (prohibiting false statements) to pursue public corrup-
tion crimes when prosecution for the underlying offense "is  not
practicable." 9A DOJ Manual at 9-1938.123 (1988); see  also United
States v. Blackley, No. 98-3036, slip op. at 9-10  (D.C. Cir. Jan. 26,
1999). It even directs prosecutors to make  their decisions based on
the nature (in this case, the gravity)  of this uncharged underlying
offense: "It is DOJ policy not to  prosecute ... under section 1001
unless the nondisclosure  conceals significant underlying wrongdoing."
9A DOJ Manu- al at 9-1938.123 (emphasis in original). Perhaps even
more  tellingly, the Internal Revenue Service has established a 
substantial "Special Enforcement Program" to investigate  people who
"derive substantial income from illegal activities,"  IRS Manual s
4566.1(1), presumably on the assumption that  in the case of many
criminals (Al Capone being the most  notorious example) it is easier
to indict and convict them for  the nonreporting and concealment of
their illegal income than  on the illegality of the income-generating
activities. The IRS  Manual goes on to explain that a person may be
targeted for  Special Enforcement (and thus for a tax case driven by
his  possible involvement in other criminality) if he "is reasonably 
believed to be receiving substantial income from an illegal  activity
that is separate and apart from the alleged tax  violations." Id. s
4566.1(2)(d). For certain underlying  crimes, the Manual states a
laxer standard. For the category  "IRS racketeer," for example, all
that is required is that he  be "identified" by a specified high IRS


engaged in organized criminal activities; notorious or power- ful with
respect to local criminal activities," etc. Id.  s 4566.1(2)(a).


That does not mean, of course, that the Independent Coun- sel is bound
by the specific provisions of various executive  branch manuals. The
dissent faults the Independent Counsel  for failure to comply with a
provision of the DOJ Manual  requiring IRS approval as a predicate to
tax cases. See  Dissent at 18-19. The dissent rests this complaint on 
s 594(f)(1), which requires the Independent Counsel to follow  DOJ
policy except where "to do so would be inconsistent with  the purposes
of this chapter." 28 U.S.C. s 594(f)(1). It  suggests that the court
wrongly "assume[s]" such inconsisten- cy. Dissent at 19. But
defendants have never raised a claim  under s 594(f)(1). In the
absence of any effort to assert the  section (and thus any opportunity
for the Independent Coun- sel to defend himself), an inference that
its exception applies  seems fairly grounded: very little independence
would be left  in the office if the Independent Counsel had to run to
DOJ or  other executive branch agencies whenever DOJ established  such
sign-off procedures.11


Thus, while the Independent Counsel is differently situat- ed, other
agencies' views on the links between crimes provide  useful guidance.
It is unreasonable that the Independent  Counsel should be hamstrung
by the need to prove every  proposition necessary for jurisdiction by
the exacting stan- dards suggested by the defense. If he were, even
his investi- gations would be severely limited, for the statute gives
no  linguistic hook for requiring a lower standard of proof for 
investigatory jurisdiction. Furthermore he, unlike every oth- er
prosecutor, would be unable to use a prosecution of an 




__________

n 11 As Morrison was decided before the "inconsistent with the 
purposes of this chapter" language was added to s 594(f)(1), see  Pub.
L. No. 103-270, s 3(e)(1), 108 Stat. 734 (1994), the dissent's 
reference to the case, see Dissent at 19, is puzzling. Absent a claim 
that the new exception is itself unconstitutional, or that the amend-
ment renders the provision of an independent counsel unconstitu-
tional in its entirety, Morrison appears to have no bearing on our 
interpretation of s 594(f)(1).


easily proved derivative offense as a substitute for prosecu- tion of
another, hard-to-prove offense. For the Independent  Counsel, a
reasonable belief that the linking crime has been  committed should


We are not confronted here with a situation where the  money at issue
is clearly untainted by possible underlying  obstruction. The timing,
sources, and extent of the payments  make the belief that they were
hush money reasonable. That  suffices.


* * *


The Supreme Court upheld the constitutionality of Con- gress's
independent counsel arrangements in Morrison v.  Olson. It is not for
lower court judges to undercut that  decision by constructions of the
Act that prevent this Inde- pendent Counsel from performing his duty
in a manner  reasonably approximating that of an ordinary


II. Immunity


Webster Hubbell invoked his Fifth Amendment privilege  against
self-incrimination in response to a broad-reaching  subpoena duces
tecum issued by the Office of the Indepen- dent Counsel (the
"Independent Counsel" or the "govern- ment"). He delivered the
specified documents only after the  Independent Counsel had obtained a
grant of use-immunity  pursuant to 18 U.S.C. ss 6002, 6003. Within the
personal  and financial records he produced, the government found 
evidence which provided the keystone for a ten-count indict- ment.
Issued by a federal grand jury on April 30, 1998, the  indictment
alleged that Webster Hubbell, together with his  wife Suzanna Hubbell,
his tax lawyer Charles Owen and his  accountant Michael Schaufele, had
committed various counts  of fraud and tax evasion. Hubbell moved to
dismiss the  charges brought against him, and in the alternative for a
 Kastigar hearing, see Kastigar v. United States, 406 U.S. 441 
(1972), arguing that the government had violated his Fifth  Amendment
privilege against self-incrimination in obtaining  an indictment based
on his immunized document production. 


Finding that the Independent Counsel had developed its case  solely on
the basis of records that Hubbell had turned over  under the grant of
statutory use-immunity, the district court  dismissed the indictment
with respect to him. As the Inde- pendent Counsel had only discovered
the extent and nature of  Hubbell's alleged tax violations through his
response to a  government subpoena, the court concluded that the
Indepen- dent Counsel had improperly turned Hubbell into the primary 
witness against himself. The government appeals from this  ruling,
asserting that the district court misconstrued the  protection
accorded by the federal use-immunity statute, see  18 U.S.C. ss 6002,
6003, as well as the Fifth Amendment's  privilege against
self-incrimination with which it is coexten- sive. Because the
district court utilized an improper legal  standard in assessing the
scope of Hubbell's Fifth Amend- ment privilege, we vacate its decision
and remand for it to  conduct a hearing as to the extent of the
Independent Coun- sel's knowledge of the records maintained by Hubbell


A.Background


In the course of its ongoing investigation into possible  criminal
activity related to Madison Guaranty Savings &  Loan Association and
the Whitewater Development Corpora- tion, the Independent Counsel
learned that Webster Hubbell  had received payments from entities
"associated with" Presi- dent William Jefferson Clinton for consulting
work allegedly  performed after Hubbell's 1994 resignation from his
position  as the Associate Attorney General. See In re Madison Guar. 
Sav. & Loan Ass'n, Div. No. 94-1 (D.C. Cir. Spec. Div. filed  Dec. 31,
1997) (application for order of referral to Indepen- dent Counsel at
3). Through a preliminary investigation  undertaken on its own
initiative, the Independent Counsel  sought to determine whether the
payments were related to  what it later described as Hubbell's
"unwillingness to cooper- ate fully with the [Whitewater]
investigation, as his plea  agreement obligated him to do." Id. On
October 31, 1996,  the federal grand jury in the Eastern District of
Arkansas  issued a subpoena directing Hubbell to turn over eleven 
categories of business and income related documents, as well 


as personal records of his activities and of his family's fi- nances,
covering the period from January 1, 1993 to the date  of the
subpoena.12




__________

n 12 The subpoena commanded production of: a) all documents 
reflecting, referring, or relating to any direct or indirect sources
of  money or other things of value received by Webster Hubbell, his 
wife or children (collectively, the "Hubbell family"), including but 
not limited to the identity of employers or clients of legal or any 
other type of work; b) all documents reflecting or referring to any 
sources of money or other things of value received by the Hubbell 
family, including billing memoranda, draft statements, bills, final 
statements and/or bills for work performed or time billed; c) copies 
of all bank records of the Hubbell family, including statements, 
registers, ledgers, canceled checks, deposit items and wire trans-
fers; d) all documents reflecting time worked or billed by Webster 
Hubbell during the course of any work performed or to be per- formed;
e) all documents reflecting expenses incurred by and/or  disbursements
of money by Webster Hubbell for work performed  or to be performed; f)
all documents reflecting Webster Hubbell's  schedule of activities,
including but not limited to all calendars,  daytimers, time books,
appointment books, diaries, records of re- verse telephone toll
charges, credit card calls, telephone message  slips, logs, other
telephone records, minutes databases, electronic  mail messages,
travel records, itineraries, tickets for transportation  of any kind,
payments, bills, expense backup documentation, sched- ules, and/or any
other document or database that would disclose  Webster Hubbell's
activities; g) all documents reflecting any retain- er agreements or
contracts for employment of the Hubbell family;  h) all tax returns,
tax return information, including but not limited  to all W-2s, form
1099s, schedules, draft returns, work papers, and  backup documents
filed, created or held by or on behalf of the  Hubbell family, and/or
any business in which the Hubbell family  holds or has held an
interest; i) all documents reflecting work  performed or to be
performed for the City of Los Angeles, Califor- nia, the Los Angeles
Department of Airports or any other Los  Angeles municipal or
governmental entity, Mary Leslie, and/or Alan  Arkatov, including but
not limited to correspondence, retainer  agreements, contracts, time
sheets, appointment calendars, activity  calendars, diaries, billing
statements, billing memoranda, telephone  records, telephone message
slips, telephone credit card statements,  itineraries, tickets for


On November 19, 1996, Hubbell appeared before a grand  jury in the
Eastern District of Arkansas and formally invoked  his Fifth Amendment
privilege against self-incrimination.  When questioned, he expressly
"decline[d] to state whether  there are documents within my
possession, custody, or control  responsive to the Subpoena."
11/19/1996 Tr. at 2. The  Independent Counsel had previously obtained
an order signed  by Judge Susan Webber Wright--under 18 U.S.C. ss
6002,  6003--directing Hubbell to respond and granting immunity  "to
the extent allowed by law." In re Grand Jury Proceed- ings, No.
GJ-96-3 (E.D. Ark. Nov. 14, 1996) (order compel- ling production of
documents). After receiving immunity,  Hubbell turned over some 13,120
pages of documents and  records. The Independent Counsel then led




__________

n receipts, ledgers, check registers, notes, memoranda, electronic 
mail, bank deposit items, cashier's checks, traveler's checks, wire 
transfer records and/or other records of financial transactions; j)
all  documents relating to work performed or to be performed by the 
Hubbell family on the recommendation of Mary Leslie and/or Alan 
Arkatov, including but not limited to correspondence, retainer 
agreements, contracts, time sheets, appointment calendars, activity 
calendars, diaries, billing statements, billing memoranda, telephone 
records, telephone message slips, telephone credit card statements, 
itineraries, tickets for transportation, payment records, expense 
receipts, ledgers, check registers, notes, memoranda, electronic 
mail, bank deposit items, cashier's checks, traveler's checks, wire 
transfer records and/or records of other financial transactions; k) 
all documents related to work performed or to be performed on  behalf
of Lippo Ltd., the Lippo Group, the Lippo Bank, Mochtar  Riady, James
Riady, Stephen Riady, John Luen Wai Lee, John  Huang, Mark Grobmyer,
C. Joseph Giroir, Jr., or any affiliate  owned or controlled by such
individuals or entities, including but  not limited to correspondence,
retainer agreements, contracts, time  sheets, appointment calendars,
activity calendars, diaries, billing  statements, billing memoranda,
telephone records, telephone mes- sage slips, telephone credit card
statements, itineraries, tickets for  transportation, payment records,
expense receipts, ledgers, check  registers, notes, memoranda,
electronic mail, bank deposit items,  cashier's checks, traveler's
checks, wire transfer records and/or  records of other financial


a series of questions tied to each of the eleven categories of 
documents requested in the subpoena. With respect to each,  the
Independent Counsel read the relevant paragraph (or a  summary
thereof) and then asked either, "Did you provide all  those
documents?" or "Those are all the records in your  possession,
custody, or control; is that correct?" Hubbell  answered "Yes" to all
eleven queries.13 The Independent  Counsel closed the session by
inquiring "have you searched or  have you made a thorough search or
caused a thorough  search to be made in response to this Subpoena?"
Hubbell  again replied "Yes." 11/19/1996 Tr. at 11-12.


The Independent Counsel's search for evidence into wheth- er Hubbell
might have obstructed its Whitewater investiga- tion revealed
potential violations of the Internal Revenue  Code. Using the contents
of the documents Hubbell turned  over to the grand jury, the
Independent Counsel identified  and developed evidence that culminated
in the prosecution at  issue in this case. On April 30, 1998, a
federal grand jury in  the District of Columbia issued a ten-count
indictment alleg- ing that Webster Hubbell, Suzanna Hubbell, Michael
Schau- fele and Charles Owen14 had conspired to defraud the United 
States Department of the Treasury and Internal Revenue  Service, the
State of Arkansas, the District of Columbia, and  the Rose Law Firm of
monies owed by Webster and Suzanna  Hubbell (collectively, the




__________

n 13 With respect to paragraphs f and j, Hubbell answered "Yes. 
Subject to the attorney/client privilege." 11/19/1996 Tr. at 9-10.


14 Michael Schaufele is a certified public accountant, and Charles 
Owen an attorney. Both are personal friends of Webster and  Suzanna
Hubbell, and each provided help in the transactions under- lying the
indictment.


15 The indictment provides a detailed accounting of the Hubbells' 
financial position from January 1994 through December 1997, sur-
veying their earnings as well as their spending patterns. It docu-
ments all of their employment and investment-related sources of 
income, trust agreements and trust accounts set up in their name,  as
well as their personal bank accounts and IRA accounts. It also 


ther alleged that all four defendants had endeavored to  obstruct and
impede the due administration of the revenue  laws, in violation of 26
U.S.C. s 7212(a), to evade payment of  the proper income tax owed by
the Hubbells for the calendar  years 1989-1992 and 1994-1995, in
violation of 26 U.S.C.  s 7201, and committed both mail and wire
fraud, in violation  of 18 U.S.C. ss 1341, 1343. Additionally, Michael
Schaufele  and Webster Hubbell were each charged with preparing and 
presenting a fraudulent tax return, in violation of 26 U.S.C.  s


Substantively, the indictment alleged that Webster Hubbell  had
received large payments for consulting services, and then  conspired
to hide this and other income through elaborate  financial
machinations. Inter alia, the indictment claims that  Hubbell
under-reported his 1994 consulting income by ap- proximately $74,000,
and failed to make any payments to- wards the tax obligations arising
out of either the roughly  $375,000 he did acknowledge earning or the
$178,000 already  owed from the willful tax evasion charge to which he
had pled  guilty on December 6, 1994.16 He also made premature 
withdrawals of more than $233,000 from his Individual Retire- ment
Account ("IRA") without paying the withholding taxes.17 




__________

n discusses the tax payments made by the Hubbells, their outstanding 
tax liabilities and other debts, and their consumer purchases.


16 The Hubbells did not make any tax payments in 1995 either,  despite
incurring an additional tax liability of greater than $112,000.


17 On each occasion, either Hubbell or Schaufele expressly elected 
that there be no withholding. The final withdrawal involved what  the
Independent Counsel has labeled the "Pension Account Check  Swap."
Hubbell had borrowed approximately $29,000 against his  profit
sharing/pension plan at the Rose Law Firm. Instead of  defaulting on
the loans, which would have required mandatory  payment of 20%
withholding, Schaufele arranged a transaction in  which the Rose Law
Firm paid the $29,000 out of its profit sharing  plan into Hubbell's
IRA account. Hubbell had previously given  checks to the Rose Law Firm
covering the same amount, which  were cashed directly after the
pension money entered Hubbell's  IRA. Hubbell thereby avoided the
automatic 20% withholding  otherwise accompanying a premature pension


In December of 1994 and January of 1995, the Hubbells  executed three
trust agreements--the Webster Hubbell Le- gal Expense Trust, the
Hubbell Children's Education Trust,  and the Hubbell Family Support
Trust--for each of which  Michael Schaufele opened a separate
non-interest bearing  trust account18 at the Metropolitan National
Bank in Little  Rock, Arkansas. In May of 1996, Michael Schaufele
opened  another non-interest bearing checking account, "for the bene-
fit of Webb and Suzy Hubbell," at Pulaski County Bank in  Little Rock,
and then used the account to make funds avail- able for the Hubbells'
personal spending. In March of 1997,  Charles Owen prepared Articles
of Organization for a compa- ny entitled the Bridgeport Group, LLC, in
which Webster  and Suzanna Hubbell each owned a forty-nine percent
inter- est and the Hubbell Children's Education Trust the remain- ing
two percent. When Hubbell entered into a book contract  with William
Morrow and Co. later that year, his $49,500  advance went into the
Bridgeport Group's account at Pulaski  Bank. The indictment broadly
alleges that the Hubbells  utilized these varied financial structures
so as to spend down  their earnings and assets without paying the
nearly $900,000  they owed in taxes to the federal government, the
state of  Arkansas, and the District of Columbia.


In a July 1, 1998 Memorandum Opinion, the district court  granted
Webster Hubbell's motion to dismiss the indictment  as violative of
the order giving him immunity and compelling  his response to the
grand jury's subpoena duces tecum. It  found that all of the evidence
to be offered by the Indepen- dent Counsel at trial derived, either
directly or indirectly,  from Hubbell's immunized response. Beginning
with the  proposition articulated in Kastigar v. United States, 406
U.S.  441, 453 (1972) that "a grant of immunity must afford protec-
tion commensurate with that afforded by the privilege"  against
self-incrimination, the district court sought to discern  the scope of
the protection offered by section 6002 through 




__________

n 18 Non-interest bearing bank accounts do not generate Form  1099s, a
copy of which would be sent directly to the Internal  Revenue Service.
See 26 C.F.R. s 1.6049-4.


examining the extent of Hubbell's Fifth Amendment privi- lege. Drawing
from the framework sketched in Fisher v.  United States, 425 U.S. 391
(1976), and reiterated in United  States v. Doe, 465 U.S. 605 (1984)
(Doe I), it focused upon the  testimonial and incriminating aspects of
the act of production.  In light of the government's admission that it
had utilized  "the information provided by Mr. Hubbell pursuant to the
 production immunity," United States v. Hubbell, 11 F. Supp.  2d 25,
34 (D.D.C. 1998), the court found that Hubbell had not  only
communicated the authenticity and his possession of the  documents,
but also implicitly testified as to the very exis- tence of documents
which added to the "sum total" of the  government's information
against him.19 Neither the exis- tence of the documents nor their
contents was a "foregone  conclusion," Fisher, 425 U.S. at 411,
because the Independent  Counsel had no source of knowledge




__________

n 19 The dissent incorrectly argues that "[h]ere the only interesting 
issue is the 'existence' theory; possession and authentication seem 
properly outside the case." Dissent at 1. The district court found 
that Hubbell implicitly testified as to the existence, his possession,
 and the authenticity of the documents turned over pursuant to the 
compelled act of production. See Hubbell, 11 F. Supp. 2d at 35 
(arguing that the analysis turns on whether Hubbell implicitly 
testified "only that the documents were authentic, or only that they 
were in his possession, or did he also implicitly testify as to their 
very existence?") (emphasis added). The district court did focus  its
discussion on the government's knowledge of the documents'  existence,
but this emphasis likely emerged from its erroneous  reading of
Fisher's existence prong, see discussion infra p. 54,  together with
its reliance on two law review articles arguing that  where the
government is ignorant as to the existence of subpoenaed  documents,
the Fifth Amendment's protection necessarily extends  to the contents
of those documents. See Hubbell, 11 F. Supp. 2d at  35 n.13 (citing
Robert P. Mosteller, Simplifying Subpoena Law:  Taking the Fifth
Amendment Seriously, 73 Va. L. Rev. 1, 41-43  (1987); Kenneth J.
Melilli, Act-of-Production Immunity, 52 Ohio  St. L.J., 223, 258-60
(1991)). While the court emphasized existence,  its findings were not
so limited. Because we are not just "left with  'existence,' " Dissent
at 1, our discussion speaks in general terms of  existence, possession


Hubbell's immunized act of production. When it utilized the 
information contained in Hubbell's response to build a case  against
him, the court concluded, the Independent Counsel  violated Webster
Hubbell's rights under the Fifth Amend- ment and the order of
immunity. Accordingly, it dismissed  Hubbell's indictment.


B. Discussion


1. Hubbell's Privilege Against Self-Incrimination


a. The Basic Fifth Amendment Framework for Com- pelled Document
Production


In delineating the proper scope of the Fifth Amendment's  privilege
against self-incrimination, the Supreme Court has  crafted a framework
that requires the presence of each of  three distinct elements for an
individual to make out a claim.  Whether addressed to oral testimony
or to documentary  evidence, the doctrine necessitates a showing of:
i) the com- pulsion; ii) of testimony; iii) that incriminates. See
Fisher,  425 U.S. at 409 ("the privilege protects a person only
against  being incriminated by his own compelled testimonial commu-


Any discussion of the Fifth Amendment's application to the  production
of documents pursuant to a subpoena duces tecum  necessarily begins
with Fisher and Doe I. These cases  collectively establish the two
propositions that structure our  inquiry. First, Fisher teaches that
the Fifth Amendment  does not protect the contents of pre-existing,
voluntarily  prepared documents. Even if written by the hand of the 
accused, the Fifth Amendment does not extend to writing  that was not
itself compelled. See Fisher, 425 U.S. at 409;  Doe I, 465 U.S. at 612
n.10 ("If the party asserting the Fifth  Amendment privilege has
voluntarily compiled the document,  no compulsion is present and the
contents of the document  are not privileged."). While the contents of
preexisting docu- ments are not protected, the Court has acknowledged
that  there are testimonial and potentially incriminating communi-
cations inherent in the act of responding to a subpoena which  may
themselves be protected by the Fifth Amendment. See 


Fisher, 425 U.S. at 410 ("The act of producing evidence in  response to
a subpoena nevertheless has communicative as- pects of its own, wholly
aside from the contents of the papers  produced."). The enforcement
authority that rests behind  the issuance of any subpoena provides the
requisite compul- sion. See id. at 409.


Specifically, the act of production communicates at least  four
different statements. It testifies to the fact that: i)  documents
responsive to a given subpoena exist; ii) they are  in the possession
or control of the subpoenaed party; iii) the  documents provided in
response to the subpoena are authen- tic;20 and iv) the responding
party believes that the docu- ments produced are those described in
the subpoena. See  Fisher, 425 U.S. at 410; Doe I, 465 U.S. at 614




__________

n 20 Although this prong has received little independent discussion, 
the Court's Doe I analysis strongly implies that authenticity refers 
to something other than the party's belief that surrendered docu-
ments match those described in the subpoena. There, the Court 
discusses authenticity in terms of admissibility under Rule 901 of 
the Federal Rules of Evidence, recognizing that the act of produc-
tion could relieve the government of the need to authenticate 
evidence. See Doe I, 465 U.S. at 614 n.13. In this sense, authentic-
ity refers to whether a document is genuine, as opposed to a  forgery
or fabrication. For example, to the extent that Hubbell  turned over a
calendar that recorded how he allocated his time, his  compelled act
of production testifies to the calendar's authenticity.


21 A number of our sister circuits have reduced these four poten- tial
statements down to two questions: i) whether production  admits the
existence, possession or control of the documents; and  ii) whether
production implicitly authenticates the documents or  verifies that
they are those sought in the subpoena. See, e.g.,  United States v.
Fishman, 726 F.2d 125, 127 (4th Cir. 1983);  United States v. Fox, 721
F.2d 32, 36 (2d Cir. 1983). Given that the  elements are identical, we
see no conceptual difference in describing  the inquiry as raising
four or two potential questions.


We do reject, however, our dissenting colleague's attempt to  eliminate
outright two of the four statements that, as the Supreme  Court
instructed in Fisher and Doe I, are potentially communicated  through
the act of production. The dissent collapses the first and 


Nevertheless, not every act that communicates one or more of  these
statements rises to the level of a protected communica- tion under the
Fifth Amendment. As Fisher itself illustrates,  the act of producing
documents in response to a subpoena will  not merit protection unless
it communicates something of  substance to the state. Where the
government already has  the knowledge that would otherwise be
conveyed, "[t]he  question is not of testimony but of surrender." Id.
at 411  (quoting In re Harris, 221 U.S. 274, 279 (1911)).


In Fisher, the IRS had issued a summons to a taxpayer's  attorney to
produce documents that had been prepared by  the taxpayer's
accountant. At the time the subpoena issued,  the IRS knew a great
deal about the requested documents.  In each of the two cases jointly
considered by the Fisher  Court, the IRS had highly specific knowledge
as to the  existence of the accountant's work papers as well as to
their  location in the hands of the summoned attorney. See id. at  394
("In No. 74-18 the documents demanded were analyses  by the accountant
of the taxpayers' income and expenses  which had been copied by the
accountant from the taxpayers'  canceled checks and deposit
receipts.").22 Moreover, as the  papers originally belonged to the
accountant, they could be  authenticated independent of the taxpayer's




__________

n third statements--existence and authentication--into the fourth, 
asking only whether the subpoenaed party has linked the docu- ments
produced to those described in the subpoena. See Dissent at  5 ("the
only sense of 'existence' that is covered by the Fifth  Amendment is
that which refers back to the subpoena.... [to] the  witness's
implicit match of the documents with the subpoena's  description.").
This exclusive obsession with what it calls "the  context of the
subpoena," Dissent at 11, disregards the letter as  well as the logic
of Fisher and Doe I, effectively eviscerating the  Fifth Amendment's
act of production privilege. See discussion  supra pp. 28-29 and note
20; infra pp. 40-45, 60-61.


22 In the other case, No. 74-611, the documents entailed an  accounting
firm's work papers concerning the taxpayer's books and  records,
retained copies of income tax returns, and retained copies  of
correspondence between the firm and the taxpayer. See id. at  394.


act of production. The testimony implicit in responding to  the
subpoena was essentially empty, as it did not augment the 
government's preexisting knowledge perceptibly. In these 
circumstances--where the "existence and location of the pa- pers are a
foregone conclusion and the taxpayer adds little or  nothing to the
sum total of the Government's information by  conceding that he in
fact has the papers," and where "the  Government is in no way relying
on the 'truthtelling' of the  taxpayer to prove the existence of or
his access to the  documents," id. at 411--the Court held that the
Fifth Amend- ment's protections were not implicated. See id.


Doe I provides an illustrative counterpoint, as the govern- ment there
knew little about the documents it subpoenaed.  As part of its
investigation into corruption in the awarding of  municipal contracts,
a grand jury issued five separate subpoe- nas to the respondent that
collectively sought a wide range of  business records from his various
solo proprietorships. In  the proceedings below on his motion to
quash, the district  court had concluded that "enforcement of the
subpoenas  would compel respondent to admit that the records exist,
that  they are in his possession, and that they are authentic....  The
government argues that the existence, possession and  authenticity of
the documents can be proved without respon- dent's testimonial
communication, but it cannot satisfy this  court as to how that
representation can be implemented to  protect the witness in
subsequent proceedings." Id. at 613  n.11. Similarly, the Third
Circuit found nothing indicating  that the government "knows, as a
certainty, that each of the  myriad of documents demanded by the five
subpoenas in fact  is in the appellee's possession or subject to his
control. The  most plausible inference to be drawn from the broad-
sweeping subpoenas is that the Government, unable to prove  that the
subpoenaed documents exist ... is attempting to  compensate for its
lack of knowledge by requiring the appel- lee to become, in effect,
the primary informant against him- self." Id. at 613-14 n.12. Finding
that the government had  failed to rebut respondent's claim "by
producing evidence that  possession, existence, and authentication
were a 'foregone  conclusion,' " id. at 614 n.13, the Supreme Court


lower court's factual determination that complying with the  subpoena
would involve testimonial self-incrimination. See  id. at 614.


Against this settled backdrop, the case at bar presents a  series of
unsettled questions. Our sister courts have yet to  reach agreement on
the particular elaboration and proper  application of the Fisher and
Doe I framework. The degree  to which a communication must be
testimonial, what the Doe  I Court described as its "testimonial
value," 465 U.S. at 613,  before it will invoke the Fifth Amendment's
protections nec- essarily falls somewhere in between the poles
represented by  Doe I and Fisher. Precisely where on this continuum a
given  document production crosses the rubicon remains undeter- mined.
The same can be said for the requisite quantum of  incrimination.
Finally, since Webster Hubbell produced the  subpoenaed documents
under a grant of immunity, we must  also determine the extent of the
protection afforded by sec- tion 6002. As Kastigar teaches, that
inquiry leads us straight  back to the scope of the Fifth Amendment
privilege. See 406  U.S. at 453 (immunity must be commensurate with
the Fifth  Amendment's protections). Bearing in mind the Supreme 
Court's prescription that "[t]hese questions perhaps do not  lend
themselves to categorical answers," and that "their  resolution may
instead depend on the facts and circumstances  of particular cases or
classes thereof," Fisher, 425 U.S. at  410; Doe I, 465 U.S. at 613, we


b. Testimonial Communications


The court below found that Hubbell's compelled act of  production
required him to make communications as to the  authenticity,
possession, and existence of the documents. See  Hubbell, 11 F. Supp.
2d at 35.23 Sidestepping this conclusion,  the Independent Counsel
argues that the Fifth Amendment's  protection should not attach
because Hubbell's response to  the subpoena had insufficient
testimonial value. In its view, 




__________

n 23 The district court erred, however, in focusing upon the Inde-
pendent Counsel's knowledge of contents of the subpoenaed docu- ments
and the information contained therein. See discussion infra  p. 54.


the documents' existence was what Fisher described as a  "foregone
conclusion." Accordingly, the actual act of produc- tion itself--the
only compelled communication involved in the  case of a document
subpoena--did not rise to a level of  communication that would merit
the Fifth Amendment's pro- tection. We disagree.


The Independent Counsel glosses over what we consider to  be an
essential component of any inquiry into the testimonial  value of a
given act of production--the quantum of informa- tion possessed by the
government before it issued the rele- vant subpoena. Instead, it makes
two separate assertions as  to why the documents' existence should be
deemed a foregone  conclusion. First, the Independent Counsel claims
that the  most natural reading of Fisher counsels against recognizing
a  testimonial value in the production of ordinary income, finan-
cial, and business records like those subpoenaed here. Since  people
generally possess such records, and since the govern- ment cannot be
expected or required to know with exactitude  the documents that any
individual suspected of wrongdoing  might have at a given time, the
existence of these categories  of documents, and of corresponding
documents falling within  the categories, should be regarded as a
foregone conclusion.  However, the Independent Counsel's argument is
not only  flawed in logical terms, but it misconstrues Supreme Court 
precedent in this admittedly abstract and under-determined  area of
the law. The argument makes the classical error in  the field of logic
of assuming that the occurrence of future  events can be logically
deduced from observations rooted in  the past. Empirical knowledge, as
David Hume and Ber- trand Russell teach, can only be a postiori, not a
priori. See  David Hume, Enquiries Concerning the Human Understand-
ing and Concerning the Principles of Morals s IV (L.A.  Selby-Biggs
ed., 1980); Bertrand Russell, The Problems of  Philosophy, 60-69
(Galaxy 1959) (that the sun rose today and  as far back as the mind
remembers does not establish that it  will rise tomorrow). Moreover,
contrary to the Independent  Counsel's characterization, the Supreme
Court's cases reflect  such an understanding, and require actual
knowledge rather  than mere inductive generalizations. In Fisher, for
example,  the IRS had precise knowledge of the existence and location


of accountant's work papers sought through the challenged  subpoena.
The taxpayer had also stipulated to both the  existence of the
documents and that they were those de- scribed in the subpoena. See
Fisher, 425 U.S. at 430 n.9  (Brennan, J., concurring). The actual
production of such  records accordingly added little, independent of
the docu- ments' substance, to the government's quantum of knowledge. 
Its testimonial value was negligible. In Doe I, by contrast,  where
the government sought a broad range of material  which could similarly
be classified as ordinary income, finan- cial and business records,
the Court held that the act of  production would have testimonial
value meriting Fifth  Amendment protection.24 While the Court left




__________

n 24 The dissent attempts to obscure the Court's holding by arguing 
that "the implications [of Doe I] are quite unclear." Dissent at 5-6. 
"The Court relied explicitly and entirely on the 'two courts' rule," 
and although it rehearsed "the arguments embraced in the courts 
below," it relied "on the anticipated use of the act of production for
 authentication of the documents, i.e., use of an indisputably
testimo- nial aspect of subpoena compliance." Id. The dissent's dual
con- cerns about the continuing viability of Doe I are, respectively, 
unfounded and inaccurate. The Doe I Court did rely upon the "two 
court" rule in upholding the fact-findings of the district and appel-
late courts below, but that reliance in no way undercuts the vitality 
of its legal holding. The "two-court" rule rests upon the division of 
labor within the federal courts, and the Supreme Court's station  atop
this structure as the court of last resort. As the Supreme  Court
noted in Rogers v. Lodge, 458 U.S. 613, 622-23 (1982), the  case cited
for the "two-court" rule in Doe I, reviewing courts do not  generally
operate as finders of fact; they disturb historical fact 
determinations only when clearly erroneous. Supreme Court Rule  10,
which indicates the character of the reasons the Court finds 
compelling when considering a petition for a writ of certiorari, 
testifies to the Court's almost exclusive legal focus. As reasons for 
granting a petition, it lists: inter-circuit splits, conflicts between
a  circuit court and a state court of last resort on an important
federal  question, conflicts between two state courts of last resort
on an  important federal question, and decisions by a circuit court or
a  state court of last resort on an important legal conclusion that 
should be settled by the Court. See Sup. Ct. R. 10. "A petition for 


possibility in future cases that the government could rebut  such a
finding by producing evidence that would establish its  prior
knowledge, the fact that the subpoena sought income,  financial and
business records did not undercut the testimoni- al value of the act
of production. See Doe I, 465 U.S. at 614  n.13.


The other cases relied upon by the Independent Counsel  are equally
ineffectual in bolstering its assertions. In United  States v. Rue,
819 F.2d 1488 (8th Cir. 1987), cited for the  proposition that courts
should assess the testimonial value of  document production by
reference solely to a document's 




__________

n a writ of certiorari is rarely granted when the asserted error 
consists of erroneous factual findings or the misapplication of a 
properly stated rule of law." Id.


Any assertion that the Doe I Court's reliance on the "two-court"  rule
somehow undercuts its precedential force ignores the Supreme  Court's
understanding of its role atop the judicial branch. The  factual
conclusions on which the Court relied--that the witness's act  of
production would involve testimonial self-incrimination by com-
municating the existence, possession, and authenticity of the sub-
poenaed documents--were only relevant to the extent that their 
presence had legal consequences. Despite the dissent's attempt to 
argue it away, Doe I explicitly held that the Fifth Amendment 
protects against such compelled communication, see 465 U.S. at 614, 
and that the subpoena could not be enforced absent a grant of 
statutory use-immunity under 28 U.S.C. ss 6002, 6003. See id. at 


The dissent's second argument for limiting Doe I is misleading.  As the
dissent points out, the Court did reference "the anticipated  use of
the act of production for authentication of the documents."  Dissent
at 6. In the preceding sentences, however, the Court also  noted
respondent's argument that "by producing the records, he  would
tacitly admit their existence and his possession." Doe I at  614 n.13.
The Court left open the possibility that the government  could rebut
respondent's claim by producing evidence that would  show this
testimonial communication to be a foregone conclusion,  but its
holding clearly embraced all three elements as potentially 
testimonial. Under Fisher and Doe I, all three--existence, posses-
sion, and authentication--are "indisputably testimonial aspect[s] of 


category, the Eighth Circuit did not hold--as the Indepen- dent Counsel
claims--that affixing a label of "financial" or  "business" to
characterize a set of records would be sufficient  to make their
existence, possession or authenticity a foregone  conclusion. While
the court did speak in terms of categories  of documents, it did so
because the subpoena itself had sought  four separate categories of
documents in the same way that  the subpoena here sought eleven
categories (or contained  eleven paragraphs). In Rue, before the
contested subpoena  even issued IRS agents had actually been permitted
to exam- ine monthly and year-end statements relating to Dr. Rue's 
dentistry practice, forms containing individual patient treat- ment
information used to produce those financial statements,  and
appointment books. See Rue, 819 F.2d at 1490. As to  these three
categories, the government had first-hand knowl- edge of the
documents' existence and their whereabouts. As  to the fourth--patient
records detailing services rendered and  accompanying charges--Dr.
Rue's repeated admissions that  the documents existed and the capacity
for independent au- thentication by other witnesses supported the
conclusion that  any testimony rendered through production was a


United States v. Fishman, 726 F.2d 125 (4th Cir. 1983),  similarly
defies the characterization that the Independent  Counsel tries to
give it; that generalized knowledge about  particular occupations can
make the existence of documents a  foregone conclusion.25 In support
of this contention, the  Independent Counsel cites language in the
Fourth Circuit's  opinion that "[b]eing business records of Dr.
Fishman, their  existence in the circumstances of this particular case
and his  possession or control are self-evident truths, and hardly
need  to be proven through resort by the Government to the act by  the
owner in turning them over." Id. at 127. However, this  sentence comes
from a paragraph discussing the question of 




__________

n 25 Given the nature of Hubbell's consulting work following his 
departure from the Justice Department, the Independent Counsel  claims
it to be a foregone conclusion at the time of the subpoena  that
authentic business records existed and were in Hubbell's 


potential incrimination, and is immediately preceded by the  statement
that "it is difficult to contemplate how mere exis- tence, possession
or control of the documents amounts to  incriminating evidence." Id.
(emphasis added). Moreover,  in discussing the testimonial value of
the act of production,  independent from the question of
incrimination, the Fishman  opinion expressly disavows the reading
that the Independent  Counsel attempts to place upon it here.
Rejecting the con- tention that Dr. Fishman had implicitly admitted
the exis- tence and his possession of the documents, the court noted 
that Dr. Fishman's "generalized reference to the subpoenaed  records
acknowledges the existence of a category, but does  not make any
representation or admission as to what docu- ments fall into it, or
whether any particular document is in  existence." Id. at 127 n.4. We
agree with the Fourth Circuit  that mere reference to a category of
records, and the accom- panying belief that certain individuals should
maintain them,  cannot and does not eliminate the testimonial value
inherent  in the act of production. The government's knowledge must 
have greater depth, and a substantiation that goes beyond  mere
conjecture. See Fox, 721 F.2d at 37 (rejecting argu- ment from revenue
agent's experience as to whether physi- cian likely maintains records


Second, the Independent Counsel asserts that it actually  had the
requisite knowledge of the existence and Hubbell's  possession of the
documents sought through the grand jury's  subpoena. We cannot agree
on the record before us. The  Independent Counsel relies upon the fact
that Hubbell had  discussed his consulting work in testimony given
before Con- gress, and that the Department of Transportation Inspector
 General had issued a report which discussed Hubbell's work  for the
Los Angeles Department of Airports. Taken togeth- er, though, these
snippets of information do not come close to  establishing the
existence of the myriad of documents sought  through the subpoena. The
knowledge that Hubbell had one  or two clients establishes very little
else, and certainly does  not even approach the level of establishing
that Hubbell had  done work for fifteen separate clients, let alone
the type of  records he kept of those activities. The Independent


also emphasizes its thorough knowledge of Hubbell's financial  records
as a result of its investigation into charges that  Hubbell committed
tax and mail fraud while working at the  Rose Law Firm. During the
period of time with which the  Independent Counsel claims
familiarity--1989-1992--Hubbell  worked as the billing partner at a
law firm in Little Rock,  Arkansas. During the period of time
underlying this prose- cution, Hubbell worked in Washington, D.C. as a
consultant,  and served out a term in prison for the mail and tax
fraud  counts to which he previously pled guilty. Unless the Inde-
pendent Counsel can establish its knowledge with a greater  degree of
specificity, the mere allegation that it was once  familiar with
Hubbell's finances does not make the existence  or possession of the
records sought a foregone conclusion.  See Maggio v. Zeitz, 333 U.S.
56, 65 (1948) (orders enforcing  a subpoena "should not be issued ...
merely on proof that at  some past time [the summoned documents were]
in [the]  possession or control of the accused party, unless the time 
element and other factors make that a fair and reasonable 


i. The Legal Standard


To formulate an appropriate legal standard as to the de- gree of prior
knowledge needed to render the existence,  possession or authenticity
of documents a foregone conclu- sion, it is necessary to return to
first principles. See Doe v.  United States, 487 U.S. 201, 209 (1988)
(describing Fisher and  Doe I as applying "basic Fifth Amendment
principles" articu- lated in general terms) (Doe II). As the Supreme
Court  moved away from the doctrine articulated in Boyd v. United 
States, 116 U.S. 616, 634-35 (1886) ("a compulsory production  of the
private books and papers of the owner of goods sought  to be forfeited
... [compels] him to be a witness against  himself, within the meaning
of the Fifth Amendment to the  Constitution."), and towards a more
literal interpretation of  the privilege against self-incrimination,
see Fisher, 425 U.S. at  401 ("We cannot cut the Fifth Amendment
completely loose  from the moorings of its language ..."), it
jettisoned the  personal privacy justification in favor of a rationale
tied far  more directly to the nature of government compulsion.


The core idea can be traced back at least to Justice  Holmes' decision
in Holt v. United States, 218 U.S. 245 (1910),  in which the Court
rejected a Fifth Amendment challenge to  a witness' testimony
establishing that the defendant had  donned and fit into a blouse worn
in a murder for which he  was being tried. Dismissing what he
characterized as an  "extravagant" allegation, Justice Holmes
explained that "the  prohibition of compelling a man in a criminal
court to be  witness against himself is a prohibition of the use of
physical  or moral compulsion to extort communications from him, not 
an exclusion of his body as evidence when it may be materi- al." Id.
at 252-53. Justice Holmes thereby drew a funda- mental distinction
between government action that extorts  communication--such action
falls within the umbrella of pro- tection afforded by the Fifth
Amendment--and government  action that merely utilizes the body of the
accused as a form  of evidence--that kind of action falls outside the
Amend- ment's particular orbit. Subsequent cases echo and develop 
this focus upon the Fifth Amendment as a barrier against  compulsion
that acts upon, and requires the exercise of an  individual's mental
faculties for communication.26 Schmerber  v. California, 384 U.S. 757,
764-65 (1966) (privilege against  self-incrimination does not extend
to a compelled blood sam- ple), Gilbert v. California, 388 U.S. 263,
265-67 (1967) (privi- lege does not extend to compelled handwriting
exemplar),  United States v. Wade, 388 U.S. 218, 222-23 (1967)
(privilege  does not extend to compelled voice exemplar), and United 
States v. Dionisio, 410 U.S. 1, 5-6 (1973) (privilege does not 




__________

n 26 The dissent argues that we "confuse[ ] the issue with [this] 
rather odd distinction." Dissent at 6. However, as our ensuing 
discussion well indicates, this distinction derives directly from the 
Supreme Court's decisions in Holt and its progeny. See also 
Pennsylvania v. Muniz, 496 U.S. 582, 597 (1990) (distinguishing the 
compelled presentation of identifying physical characteristics from 
the requirement that a suspect "communicate an express or implied 
assertion of fact or belief," as the latter imposes "the 'trilemma' of
 truth falsity or silence and hence the response ... contains a 
testimonial component"). The dissent appears to assume the liber- ty


extend to compelled voice sample), all rely upon the essential 
distinction between compulsion which operates upon the mind  by
forcing the accused to communicate information or testi- mony, and
compulsion which merely requires him to produce  his body for
inspection. While in each instance the govern- ment draws evidentiary
inferences as a result of the compul- sion, the Fifth Amendment only
protects against those infer- ences which derive from compelled
communication. See  Pennsylvania v. Muniz, 496 U.S. 582, 593 (1990)
(though  videotape of the defendant exhibiting signs of intoxication 
does not violate the Fifth Amendment, videotape showing the 
defendant's inability to respond to a question about the date  of his
sixth birthday does); Doe II, 487 U.S. at 211 n.10  (describing the
Schmerber line of cases as distinguishing  between "the suspect's
being compelled himself to serve as  evidence and the suspect's being
compelled to disclose or  communicate information or facts that might
serve as or lead  to incriminating evidence"); Schmerber, 384 U.S. at
765 ("Not  even a shadow of testimonial compulsion upon or enforced 
communication by the accused was involved either in the  extraction or
in the chemical analysis" of appellant's blood);  Dionisio, 410 U.S.
at 5-6 ("It has long been held that the  compelled display of
identifiable physical characteristics in- fringes no interest
protected by the privilege against compul- sory


The dissent misreads the letter and logic of Fisher and Doe  I because
it fails to grasp the significance of the Supreme  Court's distinction
between compulsion which uses the body  as evidence and that which
operates upon the mind by  compelling communicative acts. Instead, our
colleague at- tempts to dissect the testimonial and non-testimonial
ele- ments of providing blood, voice and handwriting samples. He 
argues that in giving blood, a person implicitly says, "This is  my
blood", Dissent at 3; in providing a handwriting sample,  the accused
admits his ability to write and that the exemplar  is his. See id. at
4. But because in both these cases, it will  require another witness
to identify the accused's voice as that  of a bank robber, or DNA
testing to match the accused's  blood with stains left at a crime
scene, the giving of blood or 


an exemplar will not be considered protected testimony. See  id. at 3.
While undoubtedly true, the point is ultimately  tangential to the
proper inquiry. The real question at issue  in Holt, Schmerber, Wade,
and Gilbert was whether the  government had merely used the accused's
body as a form or  piece of evidence, or whether the government had to
compel  communicative testimony to obtain the evidence it needed. 
Justice Holmes' Holt opinion likened trying on a blouse to  simply
sitting before the jury and allowing them to compare  your features to
that contained in a photograph of the perpe- trator. See 218 U.S. at
253. While it can be argued that the  accused implicitly testified
about something in each of the  cases cited by the dissent--that this
is my blood containing  my unique DNA, that this is my face with all
of its character- istic idiosyncracies, that this is my body with a
particular  shape and size which fits into this blouse--that testimony
was  irrelevant to the Fifth Amendment inquiry because it re- quired
no act of will on his part as to what he would  communicate. The same
reasoning applies to a compelled  submission to fingerprint analysis.
The suspect can be said  to be communicating that this is my hand and
it contains five  fingerprints unique to my person, but in reality the
individual  has merely been compelled to make himself available as a 
"source of 'real or physical evidence.' " Schmerber, 384 U.S.  at 764.
For purposes of Fifth Amendment analysis, it is  dispositive that the
government has no need to rely upon the  witness's truthtelling to
secure the evidence it seeks.


The dissent cites to Holt, Schmerber, Wade, and Gilbert for  the
proposition that where the government can draw a link  between
evidence and the accused, independent of the ac- cused's testimony,
the Fifth Amendment does not apply. See  Dissent at 2-5, 11. None of
these cases, read individually or  taken together, however, stands for
this general proposition.  All of the cases focused on whether the act
in question was  communicative or noncommunicative--whether it relied
upon  the individual's mental faculties and truthtelling capacity or 
merely used the body as a source of physical evidence--and  not on
whether the prosecution could link evidence to the 


accused without relying on his testimony.27 In each, the 




__________

n 27 The dissent's almost exclusive focus on blood and handwriting 
stems from its conflation of fundamentally separate inquiries. It 
measures the testimonial character of a compelled subpoena re- sponse
by asking, after the fact, whether produced documents can  be
independently linked back to Hubbell. While these questions go  to the
testimonial value of a given act of production, which is  properly
assessed by asking whether the existence, possession or  authenticity
of the documents was a foregone conclusion, the dissent  assumes that
they instead speak to the prior inquiry into whether  the act of
production is testimonial. Fisher, Doe I, and Braswell  have already
settled this question, teaching that the act of produc- tion is
inherently communicative. Accordingly, these cases repudi- ate the


The dissent also misreads Baltimore Dept. of Social Servs. v. 
Bouknight, 493 U.S. 549 (1990), conflating its inquiry into whether 
the state could compel production despite Fifth Amendment objec- tions
with a separate and conceptually distinct examination of  whether that
compelled act of production would communicate testi- mony. In
Bouknight, the Court held that a mother could not refuse  a juvenile
court order to produce her child, whom social services  suspected she
abused, by asserting her privilege against self- incrimination. The
Court based its decision on the fact that the  child--Maurice--had
been declared a "child in need of assistance,"  id. at 552, a judicial
determination asserting jurisdiction over Mau- rice and assigning
oversight responsibilities to the Baltimore City  Department of Social
Services. Ultimately, the Bouknight Court  confronted a single
question--whether the state juvenile court could  compel Bouknight to
produce her child--and held that Maurice's  mother had no choice but
to comply. Although the Court concluded  that Bouknight could "not
invoke the privilege to resist the produc- tion order because she has
assumed custodial duties related to  production and because production
is required as part of a noncrim- inal regulatory regime," id. at
555-56 (emphasis added), the dissent  mistakenly approaches the case
as though it rested on a finding that  production would not be
testimonial. Because it does not, see id. at  561-62 (explicitly
referencing Fifth Amendment limitations on using  any testimonial
aspects of Bouknight's compelled producing in  subsequent criminal
proceedings), the dissent's focus upon parsing  the mental from the


Supreme Court concluded that there had been no testimony;  accordingly,
the Fifth Amendment did not apply. See, e.g.,  Schmerber, 384 U.S. at
761 n.5 (distinguishing acts communi- cative in nature from the
noncommunicative); Doe II, 487  U.S. at 211 n.10 (the Schmerber line
of cases "distinguished  between the suspect's being compelled to
serve as evidence  and the suspect's being compelled to disclose or
communicate  information or facts that might serve as or lead to
incrimina- ting evidence"). However, as the Schmerber Court went on 
to state, "[i]t is clear that the protection of the privilege  reaches
an accused's communications, whatever form they  might take, and the
compulsion of responses which are also  communications, for example,
compliance with a subpoena  to produce one's papers." Id. at 764


The rationale underlying the act of production trilogy-- Fisher, Doe I,
and Braswell v. United States, 487 U.S. 99  (1988)28--with its
emphasis on compelled truthtelling, emerg-




__________

n Maurice is irrelevant to our (and any) general Fifth Amendment 
analysis. See Dissent at 6-8.


In Bouknight, the Court assumed arguendo that compelled pro- duction
would involve sufficient testimonial incrimination to impli- cate the
Fifth Amendment, see id. at 555--a critical fact our  dissenting
colleague ignores. In fact, to the extent that the Court  did touch
upon the testimonial components of the act of production,  its minimal
discussion reinforces our reading of Fisher and Doe I,  and directly
refutes the dissent's. For example, the Court noted  that while
producing Maurice would implicitly testify to his exis- tence and
authenticity, that communication was "insufficiently in- criminating."
Bouknight, 493 U.S. at 555. Because the state  already knew of his
existence, and presumably his social worker  could testify as to his
identity, both elements were essentially a  foregone conclusion. See
id. (citing Fisher's foregone conclusion  analysis). See also
discussion infra pp. 45-50. The dissent's  extensive effort to distill
contrary principles from Bouknight is  misguided and unsubstantiated;
Bouknight cannot and does not  bear the meaning that the dissent seeks


28 In Braswell, the Court held that a custodian of corporate  records
could not evade a subpoena seeking records from his  corporation
through asserting his Fifth Amendment privilege  against
self-incrimination. Although Mr. Braswell effectively 


es directly out of this focus upon whether the state operates  upon a
reluctant witness' mental faculties to compel testimo- ny. See Murphy
v. Waterfront Comm'n of New York Har- bor, 378 U.S. 52, 55 (1964)
(rooting the Fifth Amendment  privilege inter alia in "our
unwillingness to subject those  suspected of crime to the cruel
trilemma of self-accusation,  perjury or contempt ..."); South Dakota
v. Neville, 459 U.S.  553, 563 (1983) (same); Curcio v. United States,
354 U.S. 118,  128 (1957) (forcing custodian of union records who
lacks  possession to testify as to their whereabouts "requires him to 
disclose the contents of his own mind.... That is contrary  to the
spirit and letter of the Fifth Amendment."). That is,  the act of
producing documents in response to a subpoena  potentially involves
the Fifth Amendment's protections pre- cisely because the subpoenaed
party is forced to undertake  some communicative act in answering. See
Fisher, 425 U.S.  at 410; Doe I, 465 U.S. at 612. Each of the four
potential  statements that adhere to the act of production--existence,
 possession, authenticity, and the belief that the produced  documents
match the subpoena's terms--can merit protection  because they entail
"the extortion of information from the  accused, the attempt to force
him to disclose the contents of  his own mind...." Doe II, 487 U.S. at
211 (internal citations  omitted).29 In terms of the dichotomy




__________

n served as the corporation's sole owner and officer--his wife and 
mother were nominal officers so as to satisfy a Mississippi law 
requiring corporations to have three directors--he necessarily oper-
ated in a representative capacity, under the "collective entity" 
doctrine, in his duties as custodian. See 487 U.S. at 110. When 
acting as a corporate agent, the Court held, an individual cannot 
assert his personal Fifth Amendment rights; similarly, the act of 
production can only be used against the corporation and not against 
the custodian. See id. at 118 & n.11.


29 In Doe II, the Court upheld an order compelling the target of a 
grand jury investigation to sign a series of consent forms authoriz-
ing banks in the Cayman Islands and Bermuda to disclose records  for
any account to which petitioner was a signatory. Since signing  the
consent forms did not involve or imply an assertion of fact or a 


its progeny, they fall on the side of the communicative and 
testimonial.


In assessing the testimonial value of an act of production, it  makes
sense to reference the anti-extortion principle which  has become the
motivating force of self-incrimination doc- trine. In light of Fisher,
Doe I, and Doe II, we conclude that  the testimonial value varies
directly with the quantum of  information that the government seeks to
extract through  compelling the expression of the contents of an
individual's  mind and inversely with the quantum of information in
the  government's possession at the time the relevant subpoena 
issues.30 Cf. Muniz, 496 U.S. at 597 ("the cases upholding  compelled
writing and voice exemplars did not involve situa- tions in which
suspects were asked to communicate personal  beliefs or knowledge of
facts ..."). Although the Supreme  Court has not explicitly stated as
much, our conclusion is fully  in accord with, and even helps to
explain, the Court's re- peated statement that the question of whether
tacit aver- ments are sufficiently testimonial as to merit the Fifth 
Amendment's protection depends "on the facts and circum- stances of
particular cases or classes thereof."31 Fisher, 425 




__________

n disclosure of information, the Court concluded that the order did 
not run afoul of the privilege against self-incrimination.


30 The former constitutes the more important formulation, as it  ties
testimonial value directly to the disparity between the govern- ment's
knowledge and that of the subpoenaed party. It focuses  directly upon
the government's need to access the contents of an  individual's mind.
By contrast, although the government may have  little information with
respect to whether a suspect's DNA or  fingerprints match those of a
suspected culprit, and the government  will extract a great deal of
information from a blood sample or a  handwriting exemplar, neither
probes the contents of one's mind to  compel testimony. Everything of
evidentiary value traces to the  body as a source "real," as opposed
to communicative, evidence.


31 Our dissenting colleague remarks that "[t]he most confusing  part of
Fisher is the language that the courts have taken to tie  'foregone
conclusion' closely to the 'testimonial' analysis and vice  versa."
Dissent at 3. Because we think that the "foregone conclu- sion"
limitation emerges directly from the logic underlying the act 


U.S. at 410; Doe I, 465 U.S. at 613; Braswell, 487 U.S. at  103.
Moreover, although our sister courts have undertaken  particular
analyses in light of general Fifth Amendment  principles, the
conclusions they have reached in individual  cases can largely be
reconciled with this formulation.32 


__________

n of production doctrine, we do not share our colleague's confusion. 
Fisher and Doe I state the general proposition that the act of 
producing documents in response to government subpoena commu- nicates.
It provides testimony rather than physical or real evi- dence, and
this testimony comes in four recognized forms. See  discussion supra
p. 29. However, in that subset of cases in which  the testimonial
value of this communication is minimal--exemplified  by Fisher
itself--that testimony will not merit the Fifth Amend- ment's
protection. Where the government need not rely upon the  truthtelling
of the witness, because it has prior knowledge of the  information
that will be communicated through the act of produc- tion, "no
constitutional rights are touched." Fisher, 425 U.S. at 411  (quoting
In re Harris, 221 U.S. at 279). Where all that would be  communicated
is a "foregone conclusion," "the question is not of  testimony but of


The foregone conclusion analysis, which examines the testimonial  value
of the accused's act of production, has nothing to do with the 
general question of whether the act of producing documents in 
response to a subpoena is testimonial. Fisher, Doe I, and Braswell 
all teach that it is. The Court's discussion of handwriting and blood 
samples goes only towards answering this prior question. For  example,
while the Court notes that an accused forced to give a  handwriting
exemplar implicitly admits that he can write and that  the writing
produced is his own, it declares the first admission a  "near truism"
and the second "self-evident." Fisher, 425 U.S. at  411. "[A]lthough
the exemplar may be incriminating to the accused  and although he is
compelled to furnish it, his Fifth Amendment  privilege is not
violated because nothing he has said or done is  deemed to be
sufficiently testimonial for purposes of the privilege."  Id.
(emphasis added). By contrast, the act of production, which is 
inherently testimonial, may or may not be sufficiently testimonial 
for purposes of the privilege. The Fifth Amendment will not 
necessarily apply to all such communications; it "depends on the 
facts and circumstances of particular cases or classes thereof." Id. 


32 Our dissenting colleague contends that these cases can be lined  up
in part "because the factual detail of the cases is so skimpy and 


In those cases in which our sister circuits have declined to  recognize
the existence of a Fifth Amendment privilege, the  government has
usually had extensive information regarding  the documents it
subpoenaed. While the act of production  would still force an
individual to communicate knowledge and  to reveal the contents of his
mind, the government would in  no way be relying upon the
communication inherent in the  act. It is only in those instances
where the gap separating  the government's knowledge with respect to
the existence,  possession, location or authenticity of documents from
that of  the subpoenaed party is wide that our sister circuits have 
recognized a testimonial value sufficient to merit the Fifth 


In United States v. Schlansky, 709 F.2d 1079 (6th Cir.  1983), for
example, the IRS had issued a highly specific  subpoena reflecting
detailed knowledge of the documents it  sought. In particular, the
summons asked for the production  of "[a] ring binder containing 8" by
12" sheets (approximate),  3 inches deep, containing cancelled checks,
bank statements,  invoices, receipts glued to the accountants
worksheets for the  years 1976 and 1977." Id. at 1081. Since the
existence of the  binder, its contents, and their possession by Mr.
Schlansky  were not in dispute, and since authentication was available
 from other sources, the Sixth Circuit concluded that Schlan- sky's
response to the subpoena would not involve testimonial 
self-incrimination. The Second Circuit reached a similar  result in
United States v. Praetorius, 622 F.2d 1054 (2d Cir.  1979), in which
the government had subpoenaed a passport in  relation to its
investigation of a heroin importation ring.  Since the court below had




__________

n the majority's test so elastic." Dissent at 10. However, as will 
become evident from our discussion, the pejorative label "skimpy" 
rightly attaches only to the extent of the government's knowledge in 
those cases where courts have recognized a valid Fifth Amendment 
privilege. In all of the cases we discuss, the factual details are
rich  and revealing. While, for the sake of brevity, we have limited
our  recounting to a relevant summary, we refer our colleague's atten-
tion to the appropriate pages in the federal reporter.


location of the passport were not in question, the Second  Circuit
affirmed its conclusion that the act of production did  not have
sufficient testimonial value to implicate the Fifth  Amendment. See
id. at 1063.


In re Steinberg, 837 F.2d 527 (1st Cir. 1988), and United  States v.
Clark, 847 F.2d 1467 (10th Cir. 1988) also fall within  the pattern of
cases in which the government's knowledge is  nearly on par with that
of the subpoenaed individual. In  Steinberg, the government sought a
series of notebooks main- tained by members of Lyndon LaRouche's
security staff in  which they detailed the progress of a federal
investigation  into LaRouche's 1984 Presidential campaign as well as
the  staff's internal planning measures. As a government witness  had
testified to the existence and contents of the notebooks,  as well as
to Steinberg's possession, the court found that the  subpoena did not
implicate the Fifth Amendment. Steinberg,  837 F.2d at 530. In Clark,
an IRS summons sought accoun- tant's work papers and the personal
records that the taxpayer  had given his accountant, both of which
were known to have  subsequently been given to the taxpayer's
attorney. Finding  the existence of the work papers to be a foregone
conclusion,  and that the underlying records would be reflected
therein,  the Tenth Circuit refused to recognize a Fifth Amendment 
privilege. See 847 F.2d at 1472-73. See also United States v.  Stone,
976 F.2d 909, 911 (4th Cir. 1992) (in Department of  Energy
investigation into relationship between department  employees and
owner of business receiving DOE contracts,  where government knew that
appellant owned a beach house  and had sufficient knowledge that he
rented the house out  between 1983 and 1989 to request a list of
renters, subpoena  seeking utility bills and rental records targets
documents  whose existence and possession are a foregone conclusion); 
In re Grand Jury Subpoena Duces Tecum Dated Oct. 29,  1992, 1 F.3d 87
(2d Cir. 1993) (where defendant has testified  before SEC as to
possession and use of diary, and has  previously turned over a copy in
which government suspects  adulteration, subpoena for original does


By contrast, those cases in which our sister courts have  recognized a
Fifth Amendment privilege consistently reveal a  gross information
asymmetry between the government and  the subpoenaed party, which can
be bridged only by getting  at the contents of the latter's mind. In
United States v. Fox,  721 F.2d 32 (2d Cir. 1983), the IRS issued a
wide ranging  subpoena seeking an expansive array of personal,
financial  and business records of Dr. Martin Fox. At the time, the 
IRS had copies of his 1979-1981 tax returns and a transcript  of
third-party payments to the Foxes during 1979. Rejecting  the
government's contention that the testimonial value of  producing the
subpoenaed documents would be minimal, the  court reasoned that in
seeking all of the books and records of  the Fox's sole
proprietorship, the government had attempted  "to compensate for its
lack of knowledge by requiring Dr. Fox  to become the primary
informant against himself." Id. at 38.  Since the IRS could establish
neither the existence nor the  authenticity of the records sought, its
subpoena implicated  the Fifth Amendment's protections. In re Grand
Jury Pro- ceedings on February 4, 1982, 759 F.2d 1418 (9th Cir. 1985) 
involved a similarly broad subpoena, demanding personal  journals,
files related to the purchase of fishing boats, stock  transactions,
and receipts. Reasoning that the production of  documents belonging to
and prepared by the subpoenaed  party would relieve the government of
the need to establish  their existence, possession and authenticity,
the court held  that the act of production would be sufficiently
testimonial to  require protection if incriminating. See id. at 1421.
Finally,  in In re Grand Jury Proceedings, Subpoenas for Documents, 
41 F.3d 377 (8th Cir. 1994), the government subpoenaed all of 
appellants' original records from any business in which they  owned an
interest as well as all evidence of their financial  transactions for
a four-year period. Noting that the subpoe- na did not describe the
requested documents in specific  terms, the court found that the
government had failed to  establish an independent source of
authentication. Focusing  on the discretionary judgments involved in
responding to a  subpoena, the court pointedly remarked that "the


the more likely compliance with the subpoena would be  testimonial."
Id. at 380.


Although the fit is by no means perfect, the cases assessing  the
testimonial value of an act of production form a pattern  that
correlates strongly with the government's need to draw  from the
mental faculties of the responding party. Where  the information
asymmetry is large, and where the govern- ment's prior knowledge is
minimal, the act of production will  likely communicate either the
existence, possession or authen- ticity of the subpoenaed documents.


ii. Assessing the Government's Knowledge


The case at bar highlights a further doctrinal ambiguity,  which is
again tied to elaborating the extent of knowledge  that the government
must have in order to justify a conclu- sion that the communicative
aspects of the act of production  are a "foregone conclusion" under
Fisher and Doe I. Re- hearsing an argument discussed above, the
Independent  Counsel contends that government knowledge of the exis-
tence and possession of documents should be assessed solely  through
examining categories or classes of documents. While  it thus argues
that the court should measure whether the  information sought through
a subpoena is a foregone conclu- sion at a high degree of
abstraction--speaking in generalized  terms of business, financial and
tax records--the Independent  Counsel provides no support for its
contention. Moreover,  any instruction to filter review of the
government's knowl- edge through categories is inherently an empty
one, for it  fails to address the recurring level of generality
problem.  See generally, Laurence H. Tribe & Michael C. Dorf, Levels 
of Generality in the Definition of Rights, 57 U. Chi. L. Rev.  1057
(1990) (discussing the malleability and outcome- determinative nature
of levels of generality); Michael H. v.  Gerald D., 491 U.S. 110
(1989) (discussing the appropriate  level of generality at which to
define fundamental rights).  While a useful method of sorting
information, categories do  not present themselves as Platonic forms
with inherent shape  or universal meaning. Rather, defined by
reference to their  particular applications, they can be abstracted


downwards (through varying levels of generality) in order to  embrace
or reject concrete instances. See generally Ludwig  Wittgenstein,
Philosophical Investigations (G.E.M. An- scombe trans., 3d ed. 1968)
at ss 137-242 (general concepts  do not dictate their concrete
applications, but rather are  defined through them). As Doe I well
illustrates, the govern- ment cannot simply subpoena business records
and then claim  the requisite knowledge for purposes of the Fifth
Amendment  by pointing to the existence of a business.33 The




__________

n 33 Nor can the government obtain documents by compelling their 
production, and then claim that the act of production was insuffi-
ciently communicative to merit the Fifth Amendment's protection 
because the papers themselves provide independent evidence of  their
own existence. Where the government had no information as  to their
potential existence prior to the compelled response, its a  posteriori
knowledge is inextricably linked with the communicative  testimony
inherent in the subpoena response.


The dissent attempts to differentiate two concepts of existence,  only
the first of which it claims to be covered by the Fifth  Amendment. In
the dissent's view, the existence prong of Fisher  refers only to the
statement, made in a given act of production, that  "Yes, these are
the records you described in the subpoena." Dis- sent at 5. It
differentiates this definition of existence from the  more sweeping
view that connotes "in being," id., claiming that the  latter
definition is somehow foreclosed by Schmerber, Wade, and  Gilbert. The
dissent's reading falters on two separate grounds.  First, and most
important, it is explicitly contradicted by Fisher,  Doe I, and
Braswell. In each case, the Supreme Court concluded  that the act or
production "tacitly concedes the existence of the  papers demanded and
their possession or control by the taxpayer.  It also would indicate
the taxpayer's belief that the papers are those  described in the
subpoena." Fisher, 425 U.S. at 410 (emphasis  added); Doe I, 465 U.S.
at 613; Braswell, 487 U.S. at 103. The  statement which follows the
word "also" corresponds directly with  the dissent's interpretation of
the word existence. However, the  court states what has become known
as the "authenticity" prong  separate from its recognition that the
act of production communi- cates the existence of the documents sought
in a subpoena. As far  as we can tell, our dissenting colleague offers
the first opinion  attempting to read the existence prong of Fisher,


Counsel's assertion that its knowledge of Hubbell's status as  a
consultant and a taxpayer carried with it a concomitant  awareness of
the existence and possession of his consulting  and tax records
similarly falls short. The Fifth Amendment's  proscription against
compelled self-incrimination does not  hinge on tautology.


The basic problem with the Independent Counsel's conten- tion is that
it fails to recognize that there are no essential  classes or
categories of information. While the Independent  Counsel attempts to
argue that ordinary business, financial  and tax records are the
appropriate categories through which  to assess Hubbell's act of
production, other courts have  utilized those terms in a different




__________

n


I and Braswell, out of existence. We reject this attempt to render  an
independent part of the Fisher analysis redundant.


Ignoring the text of Fisher, Doe I, and Braswell, the dissent  seeks
support for its parsimonious definition through a misconstruc- tion of
Schmerber, Wade, and Gilbert. It argues that existence qua  existence
"is as 'self-evident' as the blood and its characteristics in 
Schmerber, the voice samples and their characteristics in Wade, and 
the handwriting and its characteristics in Gilbert." Dissent at 5. 
Our dissenting colleague fails to recognize, however, the legal 
import of the fact that all humans have blood and that nearly all can 
speak and write. In each case, the Supreme Court relied upon this 
self-evident quality to conclude that requiring the accused to pro-
vide a sample merely required the use of his body as physical 
evidence. They were analogous to a "compulsion to submit to 
fingerprinting, photographing, or measurements ..., to appear in 
court, to stand, to assume a stance, to walk, or to make a particular 
gesture," Schmerber, 384 U.S. at 764, because in each case they  were
considered noncommunicative or insufficiently testimonial.  See
discussion supra pp. 39-43. The Supreme Court relied upon  this
distinction between "compelling 'communications' or 'testimo- ny' "
and compulsion that "makes a suspect or accused the source of  'real
or physical evidence,' " id., in articulating the communicative 
elements of the act of production. It concluded that a compelled 
subpoena response testified to existence qua existence. According- ly,
we refuse to join our dissenting colleague's attempt to overturn  the
holding articulated in Fisher, and reiterated in both Doe I and 


Circuit in Rue, for example, used the term to reference the  various
paragraphs of the subpoena in question, see Rue, 819  F.2d at 1490,
while the Sixth Circuit has utilized it as an  open-ended device for
classifying different levels of govern- ment knowledge. See Butcher v.
Bailey, 753 F.2d 465, 470  (6th Cir. 1985) (inviting the district
court to break its assess- ment of the government's knowledge down
into whatever  document categories it sees). The level of generality
problem  arises precisely because these questions "do not lend them-
selves to categorical answers" and "may instead depend on  the facts
and circumstances of particular cases or classes  thereof." Fisher,
425 U.S. at 410; Doe I, 465 U.S. at 613.


Recognizing that the inquiry will always be highly contex- tual and
fact-intensive, we agree with the Second Circuit that  the government
must establish its knowledge of the existence,  possession, and
authenticity of subpoenaed documents with  "reasonable particularity"
before the communication inherent  in the act of production can be
considered a foregone conclu- sion.34 See In re Grand Jury Subpoena
Duces Tecum, 1 F.3d 




__________

n 34 The dissent would discredit our holding by asserting that "the 
operational meaning of the 'act of production' doctrine in our circuit
 will largely turn on district courts' discretion in this metaphysical
 classification of prosecutors' knowledge." Dissent at 10. We do  not
share the dissent's disdain for factual inquiries into the extent of 
a government official's knowledge, which forms a large part of 
ordinary judicial decision-making. Under the Fourth Amendment,  for
example, the probable cause determination with respect to both 
arrests and searches depends upon an assessment of the govern- ment's
knowledge as to the likelihood that a suspect has committed  a crime
or that incriminating items will be in a particular place.  Similarly,
district judges weigh the validity of a Terry stop, see  Terry v.
Ohio, 392 U.S. 1, 21-24 (1968), by assessing whether a  police officer
had reasonable articulable suspicion that the suspect  was potentially
involved in criminal activity. A search for weapons  incident to a
Terry stop is also assessed for whether the officer had  a reasonable,
particularized suspicion that the individual was armed.  See Alabama
v. White, 496 U.S. 325, 330 (1990) ("Reasonable  suspicion ... is
dependent upon both the content of information  possessed by police
and its degree of reliability."). To the extent  that any assessment
of the government's knowledge requires some-


87, 93 (2d Cir. 1993). In making this assessment, though, the  focus
must remain upon the degree to which a subpoena  "invades the dignity
of the human mind," Doe II, 487 U.S. at  219-20 n.1 (Stevens, J.,
dissenting) and on the quantum of  information as to the existence,
possession, or authenticity of  the documents conveyed via the act of
production.


In the proceedings below, the court's Fisher/Doe I analysis  led it to
conclude that Hubbell's compelled act of production  required him to
make communications as to the existence,  possession and authenticity
of the subpoenaed documents.  However, when articulating these factual
findings as to the  Independent Counsel's knowledge of the documents'
exis- tence--as is proper under Fisher and Doe I--the district  court
improperly conflated this Fisher/Doe I inquiry with the  conceptually
separate and temporally subsequent Kastigar  inquiry.35 See Hubbell,
11 F. Supp. 2d at 36 ("The assertion  of counsel does not begin to
show that the independent  counsel's knowledge of the documents or
their contents was a  'foregone conclusion' "); id. at 37 n.15 ("The
'existence' prong  of the Fisher analysis goes to the existence of the
information  contained in the documents, not to the fact that the
witness  keeps records."). Since the Fifth Amendment only touches  the
testimonial aspects of a subpoena response, the district  court should
have independently examined the extent of the  government's knowledge
as to the existence, possession or  control, and authenticity of the
subpoenaed documents--i.e.,  the testimonial components of the act of
production. The  inquiry should have focused upon whether the
government  knew that the documents existed at all, and not upon
whether  the government knew of the existence of the information 
contained therein. See id. at 35 ("The independent counsel  does not
claim that he knew any of the facts relevant to the  charges in this
indictment at the time of the subpoena")  (emphasis in original). Only
the former is communicated  through the act of production itself.




__________

n thing in the nature of a "metaphysical classification," we have no 
doubt that the district courts are up to the task.


35 Kastigar is discussed infra pp. 59-64.


As the district court's fact findings relevant to the  Fisher/Doe I
inquiry are inextricably linked with its assess- ment of the
government's substantive knowledge of the al- leged offenses, we
cannot decide on the record before us  whether Hubbell's act of
production had sufficient testimonial  value to invoke the Fifth
Amendment's protections. The  subpoena speaks in vague terms, and the
detail with which it  goes through the possible forms that the
information sought  could take, see supra note 12, at the very least
hints that the  government had no knowledge as to whether Hubbell
main- tained comprehensive records of the way he allocated his  time.
Moreover, it is unclear how the Independent Counsel  became apprized
of the Pulaski bank account, the three trust  accounts, the Bridgeport
Group, the check swap, and Hub- bell's early withdrawals from his IRA
accounts, each of which  figure prominently in the indictment.36 See
discussion supra  pp. 25-26. The Bridgeport Group had not been
organized, its  account at the Pulaski Bank had not been opened, and 
Hubbell had neither signed a book contract with William  Morrow and
Company, Inc., nor received his advance on the  day the subpoena
issued. The extent of the Independent  Counsel's knowledge of
Hubbell's recordkeeping practices is  also uncertain. On remand, the
district court should hold a  hearing in which it seeks to establish
the extent and detail of  the government's knowledge of Hubbell's
financial affairs (or  of the paperwork documenting it) on the day the
subpoena  issued. It is only then that the court will be in a position




__________

n 36 According to the district court, the Independent Counsel con-
ceded in oral argument that it "learned of the Bridgeport Group,  the
['for the benefit of'] account at Pulaski County Bank, and the 
'pension account check swap' charged in the indictment only  through
the documents." Hubbell, at 35. By contrast, the Inde- pendent Counsel
asserts that it discovered the account and the  check swap through
interviews with and documents produced by  Michael Schaufele, the Rose
Law Firm, and financial institutions.  See Appellant's Br. at 44-45
n.9. On remand, the Independent  Counsel bears the "heavy burden" of
demonstrating a source of  knowledge completely independent from and
untainted by the com- pelled act of production. See Kastigar, 406 U.S.
at 461-62; Bras- well, 487 U.S. at 117.


assess the testimonial value of Hubbell's response to the  subpoena.
Should the Independent Counsel prove capable of  demonstrating with
reasonable particularity a prior aware- ness that the exhaustive
litany of documents sought in the  subpoena existed and were in
Hubbell's possession, then the  wide distance evidently traveled from
the subpoena to the  substantive allegations contained in the
indictment would be  based upon legitimate intermediate steps. To the
extent that  the information conveyed through Hubbell's compelled act
of  production provides the necessary linkage, however, the in-
dictment deriving therefrom is tainted.


c. The Question of Incrimination


Under the third prong of the Fisher and Doe I analysis,  compelled
testimony must be incriminating before it merits  Fifth Amendment
protection. See Fisher, 425 U.S. at 409  ("the privilege protects a
person only against being incrimi- nated by his own compelled
testimonial communications").  The mere assertion of the privilege by
the party whose  testimony the government seeks is insufficient; "his
say-so  does not of itself establish the hazard of incrimination. It
is  for the court to say whether his silence is justified." Hoff- man
v. United States, 341 U.S. 479, 486 (1951). With respect  to a
subpoena for documents, the privilege cannot be invoked  merely
because the subpoenaed items contain incriminating  information; the
act of production must communicate and  incriminate. See Fisher, 425
U.S. at 410. To have "an  incriminating effect," Doe I, 465 U.S. at
612, the party  claiming the privilege must be "confronted by
substantial and  'real,' and not merely trifling or imaginary, hazards
of incrim- ination." Id. at 614 n.13 (citations omitted). See also
Butch- er v. Bailey, 753 F.2d at 470 (showing that document produc-
tion would incriminate "will be sufficient if the court can, 'by  the
use of reasonable inference or judicial imagination, con- ceive a
sound basis for a reasonable fear of prosecution' ")  (quoting In re


Breaking the act of production down into its individual  testimonial
components, the Independent Counsel argues that  an admission of
either the existence or possession of "ordi-


nary" business and financial records can almost never be 
incriminating. Similarly, the implicit authentication of docu- ments
would only incriminate were a subpoena to be phrased  in such a way as
to expressly request production of the  instruments of criminality. We
disagree, as both logic and  Supreme Court precedent rebut the claims
of any such nig- gardly interpretation. First, the Fifth Amendment's
protec- tions cannot depend upon such trivial semantic distinctions 
that the government can sidestep its application by request- ing "all
income records" instead of "all incriminating income  records." Artful
phrasing does not suffice. Moreover, Doe I  and Doe II belie such a
narrow reading of the Fifth Amend- ment's protections. In Doe I, the
Supreme Court found, on  the basis of the findings presented, that Doe
faced a "real and  substantial" risk of incrimination were he to
produce the  documents sought in the government's subpoena-a subpoena 
seeking ordinary business records, not "incriminating" busi- ness
records. See 465 U.S. at 614 n.13. As the government  had no
independent knowledge of the existence or his posses- sion of the
documents listed in the subpoenas at issue, and  since the act of
production would tacitly admit their existence  and his control over
them, and provide a source of authentica- tion, the court found the
threat of incrimination to be "clear."  See id. A cursory comparison
of the subpoena at issue in Doe  I with that of the case at bar
reveals marked similarities, see  id. at 607 n.1, and we think it
equally clear that Hubbell faced  a real and substantial threat of
incrimination in responding.  It is hard to divine another reason why
the Independent  Counsel would have sought an order of immunity in the


Doe II's discussion of the incrimination requirement rein- forces our
conclusion. Although the decision in Doe II turned  on the question of
whether signing a general release form  involved an assertion of fact,
the Court also discussed the  proper shape of the incrimination
inquiry. The Kastigar  Court, it argued, "implicitly concluded that
the privilege  prohibits 'the use of compelled testimony, as well as
evidence  derived directly and indirectly therefrom.' 406 U.S. at 453.
 The prohibition of derivative use is an implementation of the 


'link in the chain of evidence' theory for invocation of the 
privilege, pursuant to which the 'compelled testimony' need  not
itself be incriminating if it would lead to the discovery of 
incriminating evidence." Doe II, 487 U.S. at 208 n.6.


In the present case, it appears that Hubbell's testimony  likely
involved both direct and indirect incrimination. Ac- knowledging the
existence of an interest-bearing checking  account the income from
which the subpoenaed party had  failed to report on his tax returns
would directly incriminate;  it would inform the government of a known
source of unre- ported income. See United States v. Argomaniz, 925
F.2d  1349, 1354 (11th Cir. 1991) (where defendant failed to file tax 
returns for a series of years, admitting the existence of  documents
relating to income through production would es- tablish essential
elements of criminal failure to file a tax  return). If Hubbell had
records of that account in his  possession or control, that fact could
further incriminate. See  Smith v. Richert, 35 F.3d 300, 304 (7th Cir.
1994) (as the  mere turning over of 1099s and W-2s in response to a 
subpoena could eliminate defense of lack of knowledge or  possession,
it is incriminating). Similarly, in acknowledging  the existence of
the Bridgeport Group and its bank account at  Pulaski Bank, Hubbell
provided a link in the chain of evidence  used by the Independent
Counsel to substantiate the criminal  charges against him--an instance
of indirect incrimination.


Given the procedural posture of this case, it would be  premature for
us to review the incrimination question any  further at this juncture.
Until the district court determines  on remand precisely what
testimony Hubbell provided  through his act of production, focusing on
the extent of the  government's knowledge as of the date of the
subpoena and  on whether Hubbell's testimony added "to the sum total
of  the government's case against him," United States v. Edger- ton,
734 F.2d 913, 921 (2d Cir. 1984) (quoting Fisher, 425 U.S.  at 411),
it cannot make the appropriate fact findings as to  what extent that
testimony is incriminating. See Doe I, 465  U.S. at 614 (whether a
compelled act of production is incrimi- nating is a question of fact).
In conducting this inquiry, the  district court should be guided, as
the Supreme Court coun-


seled in Hoffman v. United States, 341 U.S. at 487, by its  particular
perceptions of the specific and unique facts of the  case.


d. The Upshot of Immunity


A grant of statutory immunity under 18 U.S.C. ss 6002,  6003, extends
as far as the Fifth Amendment privilege it  supplants. It "leaves the
witness and the prosecutorial au- thorities in substantially the same
position as if the witness  had claimed the Fifth Amendment
privilege," and is "coexten- sive" with the Fifth Amendment's
protections. Kastigar, 406  U.S. at 462. Since the district court
erred in assessing the  testimonial value of Hubbell's document
production, it con- ducted its inquiry into the effect of Hubbell's
statutory immu- nity against a faulty backdrop. On remand, the court
should  assess the impact of the immunity order in light of its new 
fact findings with respect to the government's prior knowl- edge and
the quantum of information it extracted from "the  state of mind,
memory, perception, or cognition of the wit- ness." Braswell, 487 U.S.
at 126 (Kennedy, J., dissenting).  Although this inquiry will be
fact-intensive, the district court  should bear in mind Kastigar's
teaching that "a grant of  immunity must afford protection
commensurate with that  afforded by the privilege, [although] it need
not be broader."  406 U.S. at 453. The precise contours of Hubbell's


Intervening in this case, the United States, acting through  the
Attorney General, has proffered a particular reading of  the Fifth
Amendment's intersection with compelled produc- tion which we believe
merits some discussion. Like the  Independent Counsel, the United
States draws a sharp dis- tinction between the testimonial components
of the act of  production and the contents of those documents,
essentially  ruling out the possibility that the prohibition on the
direct or  indirect use of a party's compelled testimony could extend
to  reach the contents of the documents he turns over. Instead,  it
invites the court to compare what the government learns  from the act
of production with what it would know if the  documents in question
just appeared on its doorstep. That 


intellectual exercise, it argues, separates the information con- veyed
through the act of production with what could be  deciphered from the
records themselves. See Intervenor's  Br. at 42; Dissent at 11. Since
Kastigar instructs that the  government can introduce the fruits of
immunized testimony  provided that it can meet "the heavy burden of
proving that  all of the evidence it proposes to use was derived from 
legitimate independent sources," 406 U.S. at 461-62, the  documents
themselves can serve as that independent source  of the information
communicated by their production. Pro- vided that the government does
not mention the mechanics  through which it obtained those documents,
and that the  documents are sufficiently self-explanatory and self-
referential to establish their own nexus with the defendant,  the
government would be free to use the subpoenaed docu- ments in making
its case against the defendant.37 We dis- agree.


Although the Fisher Court observed that "[t]he 'implicit 
authentication' rationale appears to be the prevailing justifica- tion
for the Fifth Amendment's application to documentary  subpoenas," 425
U.S. at 412 n.12, the Court explicitly and  repeatedly acknowledged
that the act of production also  communicates existence and
possession. See id. at 412; Doe  I, 465 U.S. at 613; Doe II, 487 U.S.
at 209; Braswell, 487  U.S. at 103. The analytic tool offered by the
United States,  however, reads both of these testimonial components
out of  existence. While the government may be able to establish  the
authenticity of the documents independently, whether in  terms of
their own self-reference or the testimony of a  witness familiar with
them, the magical appearance of the 




__________

n 37 The Independent Counsel has made a similar argument, claim- ing
that it has not and will not trample Hubbell's Fifth Amendment  rights
because it has no need to introduce Hubbell's actual docu- ments at
trial. Accordingly, the Independent Counsel asserts that  it can
obviate Hubbell's testimony as to the existence, possession,  control,
and authenticity of the subpoenaed documents. See Appel- lant's Br. at
12 ("the government has made no use of Mr. Hubbell's  act of
production in the course of developing the charges in the 


documents obviates the need for prior knowledge that the  documents
actually exist. Yet "Kastigar does not prohibit  simply 'a whole lot
of use,' or 'excessive use,' or 'primary use'  of compelled testimony.
It prohibits 'any use,' direct or  indirect." United States v. North,
910 F.2d 843, 861 (D.C.  Cir. 1990). Once the documents appear and are
examined,  such that their existence enters the consciousness of the 
prosecutor, the United States has offered no means through  which the
government can establish that its evidence "is not  directly or
indirectly derived from such testimony" as to their  existence. United
States v. North, 920 F.2d 940, 946 (D.C.  Cir. 1990) (emphasis in
original).


The intellectual exercise suggested by the Justice Depart- ment and
embraced by our dissenting colleague, see Dissent  at 11, essentially
eviscerates the act of production doctrine, as  well as the Fifth
Amendment protection it secures. To offer  a counter-hypothetical,
assume that the government grants  immunity to a murder suspect,
compelling him to incriminate  himself verbally. Under compulsion, the
accused admits that  he stabbed the victim, and that he buried the
murder weapon  in a particular place that would not have been
discovered  through any alternative line of government investigation. 
When the police go to this remote location, they find a knife. 
Forensic testing reveals it not only to be the murder weapon,  but
also to contain blood stains and a set of fingerprints that  match our
suspect's. Would we allow a prosecution to be  based on the
incriminating knife, under our colleague's "man- na from heaven"
scenario, by assuming that it miraculously  appeared in the district
attorney's office? Could it be used as  evidence so long as no-one
testified as to how they learned of  its whereabouts? Once the accused
has already directed the  government to the knife, should we limit his
Fifth Amend- ment privilege by hypothesizing after the fact--as an
intellec- tual exercise--that the knife could have been linked to the 
accused because of the blood or fingerprints on it, or because  the
prosecutor conceivably could have received an anonymous  report
describing the location of the weapon? Could the  prosecutor,
consistent with the Fifth Amendment, bring  charges based upon any


weapon and the accused that it can divine after the fact? The 
questions answer themselves. They also rebut the theory of  the act of
production doctrine proffered by the Justice De- partment and the
dissent. Since the Self-Incrimination  Clause has always been
understood to refer to testimony in  all of its forms, whether
communicated by voice or through  physical acts, see Doe II, 487 U.S.
at 209-10 n.8 ("Petitioner  has articulated no cogent argument as to
why the 'testimonial'  requirement should have one meaning in the
context of acts,  and another meaning in the context of verbal
statements.");  Muniz, 496 U.S. at 595 n.9 (definition of testimonial
communi- cation "applies to both verbal and nonverbal conduct"), the 
protection it accords to verbal communications must extend to  the
testimony conveyed through a compelled act of produc- tion.38


Now suppose a variation of our hypothetical, in which the  police
discover a victim's body in the basement of a large  apartment
building, and an autopsy establishes stabbing to be  the cause of
death. Lacking any clues, a grand jury issues a  subpoena to every
resident in the building, asking each to  produce "all knives and
other forms of cutlery that are now,  or in the preceding month have
been, in your possession or  control." The residents object en masse,
asserting inter alia  their Fifth Amendment privilege against
self-incrimination.  After the prosecutor obtains an order compelling
production  and granting immunity to the maximum extent allowed by 
law, the residents comply with the subpoena. Among the  recovered
knives, the police discover the murder weapon.  The prosecutor indicts




__________

n 38 Our dissenting colleague recognizes that the weapon is the 
tainted fruit of immunized oral testimony, see Dissent at 11, the 
inevitable conclusion under settled law that we constructed our 
hypothetical to reflect. The taint remains, however, regardless of 
whether the knife can be independently linked back to the accused  by
some stretch of the imagination. The dissent's post hoc "manna  from
heaven" scenario cannot purge it. Where the government  makes the same
use of compelled document production, depending  on the facts and
circumstances of the particular case, those docu- ments can be equally


moves to dismiss the indictment, claiming that his immunized  subpoena
response testified as to the existence, his posses- sion, and the
authenticity of the knife he produced. Having  handed the government
the murder weapon, and provided the  explicit link between it and
himself, can the accused neverthe- less be prosecuted consistent with
the Fifth Amendment  provided that the government finds some
independent way to  link him with the knife? If our protagonist has
once again  left behind fingerprints and traces of his blood, could
they be  used as evidence, together with the knife, so long as no one 
testified as to the means of recovery? In the scenario we  paint,
where the government had no evidentiary knowledge  independent of that
derived, directly and indirectly, from  testimony communicated through
compelled production, Fish- er, Doe I, Doe II, Kastigar and Braswell
clearly repudiate  any attempt to do so. They collectively teach that
the scope  of the Fifth Amendment's protection cannot be measured by 
merely imagining that our knife appeared, like manna from  heaven, in


In a case such as the present one, in which the govern- ment's
knowledge of the existence or possession of the exten- sive
documentation sought via subpoena appears scant at  best, the United
States' hypothetical about finding the papers  on its doorstep fails
to capture the true nature of the Fifth  Amendment's protection
against the government probing the  mind of an accused in order to
ascertain evidence it can use to  convict him. Where the testimonial
value of document pro- duction is high, and the government obtains a
large quantum  of information directly from the witness' mental
faculties, the  government labors under "a heavy burden of proving
that all  evidence it seeks to introduce is untainted by the immunized
 act of production." In re Sealed Case, 791 F.2d 179, 182  (D.C. Cir.
1986) (internal citations omitted). If the govern- ment did not have a
reasonably particular knowledge of  subpoenaed documents' actual
existence, let alone their pos- session by the subpoenaed party, and
cannot prove knowledge  of their existence through any independent
means, Kastigar  forbids the derivative use of the information
contained therein  against the immunized party. See 406 U.S. at 453


ty from the use of compelled testimony, as well as evidence  derived
directly and indirectly therefrom, ... prohibits the  prosecutorial
authorities from using the compelled testimony  in any respect, and it
therefore insures that the testimony  cannot lead to the infliction of
criminal penalties on the  witness."). Accordingly, should the
Independent Counsel  prove unable to meet the requisite evidentiary
burden, the  contents of those documents will be inadmissible. See
Sealed  Case, 791 F.2d at 182 ("Thus, if in fact appellee's privilege
in  the act of production cannot be protected without excluding  the
contents of the tapes (a point on which we express no  opinion) the
District Court has the authority to prevent the  government from
referring to or introducing those con- tents.").


"The decision to seek use immunity necessarily involves a  balancing of
the Government's interest in obtaining informa- tion against the risk
that immunity will frustrate the Govern- ment's attempts to prosecute
the subject of the investigation."  Doe I, 465 U.S. at 616. Unless the
Independent Counsel can  establish its knowledge of the existence and
possession of the  documents sought in the subpoena with greater
detail and  particularity, it will have to live with the consequences
of its  decision to compel production.


III. Conclusion


For the reasons above, we vacate the district court's judg- ment and
remand for further proceedings in light of this  decision.


So ordered.


Wald, Circuit Judge, concurring in Part I: I believe that a  reasonable
construction of the original mandate shows that it  is "demonstrably
related" to the tax evasion and asset con- cealment prosecutions in
dispute here. That, however, is only  because, as the panel opinion
makes clear, at least some of  the consulting monies Hubbell received
in the years 1994- 1997 may have been tainted as hush money. "The
timing,  sources, and extent of the payments make the belief that they
 were hush money reasonable." Panel Opinion ("Panel Op.")  at 20.
Thus, manipulation of all monies received during that  period may have
been related to the concealment of any  tainted money--money, that is,
received in return for ob- structing the Independent Counsel's
Whitewater investiga- tion. Panel Op. at 15-18. In the face of these
circumstances,  I disagree with the dissent's conclusion that the
Independent  Counsel's failure to bring an indictment on the hush
money  allegations, either first or contemporaneous with the tax 
violations, means that no "credible evidence" of any wrongdo- ing
exists. Dissenting Opinion ("Diss. Op.") at 16-17.


The simple fact that no prior or simultaneous indictment  for
obstruction was brought down specifically alleging that  monies were
received as a quid pro quo for noncooperation in  the main Whitewater
matter does not compel a conclusion  that the tax evasion and asset
concealment charges are not  related to the original subject matter.
It would, in my view,  be unreasonable to require the Independent
Counsel to bring  authorized prosecutions in any special order or
sequence  provided that they are undertaken and continued only so long
 as the "relatedness" requirement remains satisfied. I believe  such a
standard may be inferable from the panel opinion,  Panel Op. at 18,
but I wish to make clear here my own view  that at the point that the
Independent Counsel is no longer  diligently pursuing his
investigation of the main allegation  that money was channeled to
Hubbell for noncooperation or  misleading testimony, with a reasonable
expectation that it  will prove fruitful, the other ancillary claims
of manipulation  or failure to report taxes cease to be "demonstrably
related"  to the original mandate. It is not enough that the Indepen-
dent Counsel could at one time state a reasonable belief that 


the underlying obstruction allegations were true. In my  view, the
underlying investigation into the hush money charge  must have been
ongoing, and there must have been credible  evidence that the
underlying offense did indeed occur at the  time the ancillary
indictment was filed. To the extent that  prosecution for the
obstruction offense was not practicable at  the time of the tax
indictments, whether because the main  investigation had yet to be
completed, or because the Inde- pendent Counsel believed that
evidentiary problems limited  the prospects of obtaining a conviction
on the obstruction  offense at that moment, the Independent Counsel
would still  have jurisdiction over the ancillary charges, provided
that  credible evidence remained to substantiate its belief that the 
obstruction crime had been committed. However, if at some  point
during the investigation it becomes apparent that this  belief is
unfounded, then at that time the ancillary counts  should be passed
over to the Justice Department to screen  and, if appropriate, to
prosecute. That does not, however,  appear to be the case here--we
were assured at oral argu- ment by the Independent Counsel himself
that the main hush  money investigation was not closed, and if there
is any reason  to believe that it is a dead letter at the time the
indictment  for ancillary tax matters was brought (or even when it is 
reinstated on remand here), then a hearing (in camera if  necessary)
by the district judge on the issue would be appro- priate. But
assuming, as we must on the record before us,  that the principal
investigation into possible obstruction was  alive at the time the
ancillary tax indictments were brought  and remains so, I cannot but
conclude that the tax indict- ments were related to the main endeavor




__________

n 1 Although the dissent challenges the notion that these tax eva- sion
indictments would have been proper even if there had been a 
simultaneous prosecution for taking hush money, but see Oral Arg.  Tr.
at 41, 43-44 (defense counsel endorsing simultaneous prosecu- tion), I
do not see how that argument can be maintained. The  original mandate,
as required by 28 U.S.C. s 593(b)(3), granted the  Independent Counsel
jurisdiction to investigate and prosecute ob- struction of its primary
investigation. When inquiring into whether 


Finally, while I do believe that some deference is due the  Special
Division's interpretation of these prosecutions as re- lated to the
original one, I would not find it necessary under  the facts here to
decide if the appropriate level of deference is  substantial, Panel
Op. at 7, or only due deference. I do not  find the agency analogy
particularly persuasive, but on the  other hand I believe that the
responsibilities of the Special  Division under the statute to define
the Independent Coun- sel's jurisdiction initially, and subsequently
to assess requests  for the referral of related matters, strongly
militate toward  some deference; the degree of deference due will
likely  depend on the circumstances of each case. The extent of that 
deference might shift according to whether the Special Divi- sion's
relatedness determination is grounded particularly on  facts made
known to it by the Independent Counsel or the  Attorney General or on
a legal or conceptual conclusion that  the offenses or persons are
sufficiently related to the original 




__________

n Hubbell had received hush money in return for noncooperation, the 
Independent Counsel had jurisdiction to investigate the likely con-
cealment of any such payments. As tax evasion constitutes a logical 
part of any effort to evade the detection of illicit funds, the 
Independent Counsel legitimately focused his attention in that 
direction. Whatever Hubbell's subjective motivation for not report-
ing income might have been, tax evasion is an inherently concealing 
activity. To the extent that Hubbell failed to report consulting fees 
alleged to be hush money, he obstructed the obstruction investiga-
tion. Provided that the underlying investigation was still actively 
being pursued, the Independent Counsel accordingly had jurisdic- tion
to investigate and prosecute Hubbell's acts of concealment.


The dissent suggests, however, that this court, in order to assure 
that the Independent Counsel's investigation had actually unearthed 
evidence of obstruction, should have taken up the Independent 
Counsel's proffer to view evidence relating to the "hush money" 
allegations in camera. Diss. Op. at 17. Aside from the fact that  one
of the defense counsel explicitly denounced such a course at  oral
argument, see Oral Arg. Tr. at 41, that inquiry would be more 
appropriately conducted by the district court when adjudicating a 
motion to dismiss the indictment for unrelatedness on this ground.


mandate. At any rate, I think the relatedness requirement is 
satisfied here under either standard of deference.


Tatel, Circuit Judge, dissenting from Part I:


This court today concludes that the indictment of Webster  Hubbell for
failing to pay taxes on income earned in Washing- ton, D.C., in 1994
"arises out of" or "relates to" the Indepen- dent Counsel's
investigation of various Arkansas land transac- tions in the mid-1980s
known as Whitewater. Because this  result expands independent counsel
authority at the expense  of the Executive Branch, I believe it
violates the constitution- al principle of separation of powers. By
deferring to the  Special Division and by adopting virtually limitless
theories of  "relatedness," the court fails to police the boundaries
that  Morrison v. Olson deemed essential to the constitutionality of 
the independent counsel statute. See 487 U.S. 654 (1988).  Mindful of
these boundaries, which guarantee political ac- countability for the
prosecutorial function, and of "the duty of  federal courts to
construe a statute in order to save it from  constitutional
infirmities," id. at 682, I would find that the tax  indictment is not
"demonstrably related to the factual circum- stances that gave rise to
the Attorney General's ... request  for the appointment of the
independent counsel," id. at 679.  I would therefore affirm the
district court's order quashing  the indictment.


I


Vesting the executive power in the President of the United  States, the
Constitution directs that "he shall take Care that  the Laws be
faithfully executed." U.S. Const. art. II, s 3.  To aid in this task,
Congress specifically delegated to the  Attorney General and her
subordinates in the Department of  Justice the power to "conduct any
kind of legal proceeding,  civil or criminal," 28 U.S.C. s 515(a)
(1994); see id. s 516,  including the prosecution of tax crimes, see
28 C.F.R. s 0.70  (1998).


The Ethics in Government Act of 1978 carved a narrow  exception to the
Attorney General's power to enforce federal  criminal law. In the wake
of the "extraordinary sequence of  events" of the Watergate
scandal--in particular, the firing of  special prosecutor Archibald
Cox--Congress saw the need for 


"the appointment of an independent temporary special prose- cutor for
certain limited cases where the Department of  Justice may have a
conflict or interest with respect to a  particular investigation." S.
Rep. No. 95-170, at 6, 34 (1977),  reprinted in 1978 U.S.C.C.A.N.
4126, 4222, 4250. Aware of  the constitutional implications of
creating an independent  prosecutorial function outside the Executive
Branch, Con- gress adopted an elaborate array of procedures
controlling  the appointment, powers, and jurisdiction of independent 
counsel. See 28 U.S.C. ss 592-596. Independent counsel  may be removed
by the Attorney General for "good cause,"  may perform only certain
limited duties, and may act only  within the scope of prosecutorial
jurisdiction ceded by the  Attorney General. See S. Rep. No. 95-170,
at 56, 1978  U.S.C.C.A.N. at 4272 ("The prosecutorial jurisdiction of
the  special prosecutor is one of the most important devices for  the
control ... and the accountability of such a special  prosecutor.").
Absent expansion by the Attorney General  under 28 U.S.C. s 593(c),
the jurisdiction of an independent  counsel is limited to matters
related to the Attorney General's  original request for appointment of
an independent counsel  under 28 U.S.C. s 592(d).


In Morrison, the Supreme Court found these constraints  essential to
the statute's constitutionality. Without them, the  Court could not
have characterized the independent counsel  as an "inferior officer"
under the Appointments Clause of the  Constitution. See 487 U.S. at
670-77. Once an independent  counsel investigates or prosecutes
matters beyond the juris- diction ceded by the Attorney General, the
independent coun- sel sheds his "inferior" status and becomes a
"principal  officer" requiring Presidential appointment and Senate
confir- mation. See Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per 
curiam). Although "the power to appoint inferior officers  such as
independent counsel is not in itself an 'executive'  function in the
constitutional sense," Morrison, 487 U.S. at  695, the power to
appoint principal officers surely is. See  U.S. Const. art. II, s 2,
cl. 2. For that reason, the Morrison  Court thought it
constitutionally important that "the jurisdic- tion of the independent


the facts submitted by the Attorney General" and that "the  Act [28
U.S.C. s 594(f)] requires that the counsel abide by  Justice
Department policy unless it is not 'possible' to do so."  487 U.S. at
696 (emphasis added). These limitations, among  others, "give the
Executive Branch sufficient control over the  independent counsel,"
id., and ensure that the Act does not  " 'impermissibly undermine[ ]'
the powers of the Executive  Branch," id. at 695 (citation omitted).
An independent coun- sel who exceeds the jurisdiction conferred by the
Attorney  General usurps the President's constitutional power to main-
tain control of the inherently "executive" function of law 
enforcement. See id. at 691, 694.


Morrison expressed similar constitutional concerns about  the role of
the Special Division of this court. The statute  allows the Special
Division to appoint an independent counsel  only after the Attorney
General makes a preliminary investi- gation, determines that further
investigation is warranted,  prescribes a subject matter for
investigation and potential  prosecution, and "applies" to the Special
Division for an  appointment. See 28 U.S.C. ss 592(c)-(d), 593(b). In
defin- ing an independent counsel's prosecutorial jurisdiction, the 
Special Division has only one function:


[to] assure that the independent counsel has adequate  authority to
fully investigate and prosecute the subject  matter with respect to
which the Attorney General has  requested the appointment of the
independent counsel,  and all matters related to that subject matter.
Such  jurisdiction shall also include the authority to investigate 
and prosecute Federal crimes ... that may arise out of  the
investigation or prosecution of the matter with re- spect to which the
Attorney General's request was made,  including perjury, obstruction
of justice, destruction of  evidence, and intimidation of witnesses.


Id. s 593(b)(3). Describing the Special Division's power to  define
jurisdiction as "incidental" to its power to appoint,  Morrison made
clear that the Special Division's authority is  quite limited:


[Congress] may vest the power to define the scope of the  office in
the [Special Division] as an incident to the  appointment of the
officer pursuant to the Appointments  Clause. That said, we do not
think that Congress may  give the Division unlimited discretion to
determine the  independent counsel's jurisdiction. In order for the
Divi- sion's definition of the counsel's jurisdiction to be truly 
"incidental" to its power to appoint, the jurisdiction that  the court
decides upon must be demonstrably related to  the factual
circumstances that gave rise to the Attorney  General's investigation
and request for the appointment  of the independent counsel in the


487 U.S. at 679 (second emphasis added). To be sure, the  statute also
provides that the Special Division may, upon a  request by an
independent counsel, "refer to the independent  counsel matters
related to the independent counsel's prosecu- torial jurisdiction." 28
U.S.C. s 594(e). But Morrison left  no doubt that referrals may not
expand the original scope of  an independent counsel's jurisdiction.
See 487 U.S. at 680  n.18. Consistent with the separation of powers
principle, only  the Attorney General may expand an independent
counsel's  prosecutorial jurisdiction. See 28 U.S.C. s 593(c).


Thus, the Attorney General's "initial suggestion of jurisdic- tion,"
Majority Opinion ("Maj. Op.") at 8--or more precisely,  as Morrison
put it, "the factual circumstances that gave rise  to the Attorney
General's investigation and request for the  appointment of the
independent counsel," 487 U.S. at 679-- serves as the ultimate
baseline for assessing the legality of  any definition of jurisdiction
by the Special Division as well as  any exercise of authority by an
independent counsel. Consti- tutionally required, this baseline
reconciles the principle of  separation of powers with the vesting of
prosecutorial author- ity in an official independent of the Executive


II


In her June 30, 1994 application to the Special Division, the  Attorney
General prescribed the subject matter of the Inde- pendent Counsel's
jurisdiction as follows:


whether any individuals or entities have committed a  violation of any
federal criminal law, ... relating in any  way to James B. McDougal's,
President William Jeffer- son Clinton's, or Mrs. Hillary Rodham
Clinton's relation- ships with Madison Guaranty Savings & Loan
Associa- tion, Whitewater Development Corporation, or Capital 
Management Services, Inc.


Application for Appointment of Independent Counsel, In re  Madison
Guar. Sav. & Loan Ass'n (June 30, 1994). The  application also
authorized prosecution of any conduct ob- structing the investigation
of this core subject matter. See  id. Exercising its power under 28
U.S.C. s 593(b)(1), the  Special Division on August 1, 1994 appointed
Kenneth W.  Starr as independent counsel and granted him prosecutorial
 jurisdiction over matters set forth in the Attorney General's 
application. See Maj. Op. at 3-4 (describing the Special  Division's
original grant of jurisdiction). Responding to sub- sequent requests
from the Independent Counsel, the Special  Division twice exercised
its referral power under 28 U.S.C.  s 594(e). See Maj. Op. at 4-5
(describing the September 1,  1994 and January 6, 1998 referrals).


The second referral arose from an application in which the  Independent
Counsel stated:


In the course of its investigation, this Office received  information
regarding payments to Mr. Hubbell from  individuals and entities
associated with the Clinton Ad- ministration. These payments were made
starting in  1994, when Mr. Hubbell was publicly known to be under 
criminal investigation. This Office initiated a prelimi- nary
investigation into whether these payments might be  related to Mr.
Hubbell's unwillingness to cooperate fully  with the investigation, as
his plea agreement obligated  him to do. The grand jury has heard
evidence related to  the payments, including evidence that Mr. Hubbell
may  have committed fraud and tax crimes in connection with  them.


Application for Order of Referral, In re Madison Guar. Sav.  & Loan
Ass'n (Dec. 31, 1997), at 3-4. In response, the 


Special Division's referral authorized investigation and prose- cution
of crimes, including tax offenses, associated with Hub- bell's income
since 1994, as well as other crimes such as  obstruction of justice
and perjury "related to payments that  Mr. Hubbell has received from
various individuals and enti- ties" since 1994. Order Granting
Application for Order of  Referral, In re Madison Guar. Sav. & Loan
Ass'n (Spec. Div.  D.C. Cir. Jan. 6, 1998). The Independent Counsel
then  brought a 10-count, 42-page indictment detailing an elabo- rate
tax evasion scheme allegedly undertaken by Hubbell and  his wife,
along with their lawyer and accountant.


We now face the following question: Under sections  593(b)(3) and
594(e) of the Ethics in Government Act, does  this indictment "arise
out of" or "relate[ ] to" the original  scope of the Independent
Counsel's prosecutorial jurisdiction?  To answer this question, we
must evaluate the indictment not  against the two referrals by the
Special Division--those refer- rals could not have expanded the
original scope of the Inde- pendent Counsel's jurisdiction, see
Morrison, 487 U.S. at 680  n.18--but against the Special Division's
original August 5,  1994 grant of authority. Given Morrison's
constitutional  limitation on the Special Division's power to define
indepen- dent counsel jurisdiction, see id. at 679, the precise
question  before us is this: Is the indictment of Hubbell for tax
evasion  "demonstrably related to the factual circumstances that gave 
rise to the Attorney General's investigation and request for  the


Before addressing this issue, this court holds that the  Special
Division's January 1998 referral is entitled to defer-
ence--"substantial" deference, according to Judge Williams;  at least
"due" deference, according to Judge Wald. Either  way, I disagree.


At the outset, I think it important to clarify that, as a  procedural
matter, we are not directly reviewing the Special  Division's
referral. The statute nowhere authorizes appeals  from Special
Division referrals. Courts of appeals and the  Special Division play
different institutional roles under the  independent counsel statute.
They act at different stages of 


the investigation, and they have different documents before  them.
Although the Special Division made an implicit deter- mination of
"relatedness" in its referral, it did so in the  context of a request
for investigative and prosecutorial au- thority. That investigation
has now progressed beyond mere  allegations and has evolved into an
indictment. Our task, like  the district court's before us, is to
resolve a specific dispute  whose parameters have crystallized: We
must decide whether  the April 30, 1998 indictment, in all its
concreteness and  particularity, is "related to" the original scope of
the Indepen- dent Counsel's prosecutorial jurisdiction. The Special
Divi- sion did not resolve this question, nor could it.


In support of giving the referral deference, Judge Williams  accepts
the view that the Special Division "act[ed] quite like  [an agency]
glossing its own regulation" when it exercised its  referral power.
Maj. Op. at 8. However, the Special Divi- sion possesses none of the
characteristics of agencies that  entitle their legal judgments to
judicial deference. See Chev- ron U.S.A. Inc. v. Natural Resources
Defense Council, Inc.,  467 U.S. 837, 865 (1984). In making "related
to" determina- tions, the Special Division exercises no special or
technical  expertise that circuit and district courts lack. The
Special  Division has no political accountability through either
execu- tive or congressional oversight, and its members are neither 
appointed by the President nor confirmed by the Senate for  their
role. No provision of law allows for direct judicial  review of its
decisions. Unlike administrative agencies--and  unlike even the U.S.
Sentencing Commission, see 28 U.S.C.  ss 991(b), 994-995--the Special
Division exercises no  congressionally-delegated policymaking
responsibilities. This  last fact alone undermines the agency analogy,
for "the power  authoritatively to interpret its own regulations is a
component  of the agency's delegated lawmaking powers." Martin v. 
Occupational Safety & Health Review Comm'n, 499 U.S. 144,  151 (1991)


Morrison left no doubt that in both form and function, the  Special
Division is a court, not an agency. The opinion  consistently refers
to the Special Division as a "court": "The  court consists of three
circuit court judges or justices appoint-


ed by the Chief Justice of the United States," 487 U.S. at 661  n.3;
"we do not think it impermissible for Congress to vest  the power to
appoint independent counsel in a specially  created federal court,"
id. at 676; "there is no risk of partisan  or biased adjudication of
claims regarding the independent  counsel by that court," id. at 683;
"once the court has  appointed a counsel and defined his or her
jurisdiction, it has  no power to supervise or control the activities
of the counsel,"  id. at 695. Were this language not clear enough,
Morrison  explicitly held that the Special Division's functions fall
within  the range of powers assigned to federal courts by the Ap-
pointments Clause, see id. at 673-77, and by Article III, see  id. at


Morrison also acknowledged that the Special Division func- tions in a
judicial capacity when exercising its referral power.  Observing that
"in order to decide whether to refer a matter  to the counsel, the
court must be able to determine whether  the matter falls within the
scope of the original grant," the  Supreme Court said that the
referral power involves "the  power to 'reinterpret' or clarify the
original grant." Id. at  685 n.22 (emphasis added); see also In re
Espy, 80 F.3d 501,  507 (Spec. Div. D.C. Cir. 1996) ("In referring a
related  matter, this court is interpreting, but not expanding, the 
independent counsel's original prosecutorial jurisdic- tion...."). In
other words, the referral function requires the  Special Division to
decide a legal question--i.e., whether the  matters contained in an
independent counsel's request for  referral are "related to" the
original jurisdictional grant. See  id. at 507-09; In re Olson, 818
F.2d 34, 47-48 (Spec. Div.  D.C. Cir. 1987). Answering this question
calls on the Special  Division--whether explicitly (as in Espy) or
implicitly (as in  this case)--to develop and apply a theory of
"relatedness"  consistent with the independent counsel statute and the


Because the Special Division's January 1998 "related to"  determination
amounts to a legal judgment, we owe it no  deference. We typically
apply de novo review to decisions of  other courts (except the Supreme
Court) on questions of  federal law, see Elder v. Holloway, 510 U.S.
510, 516 (1994) 


(questions of law must be resolved de novo on appeal), and  "[w]hen de
novo review is compelled, no form of appellate  deference is
acceptable," Salve Regina College v. Russell, 499  U.S. 225, 238
(1991). No one contends that the Special  Division, as part of the
D.C. Circuit, creates binding circuit  precedent through its
decisions. In relation to this court, the  Special Division's legal
determinations resemble those of our  sister circuits, whose
conclusions of law we review neither  directly nor deferentially.


Acknowledging that referrals could be characterized as  judicial acts,
Judge Williams says that referrals most closely  resemble the issuance
of search warrants by federal magis- trates or state judges, whose
determinations of probable  cause, "[a]lthough made ex parte and
resolving constitutional  questions," are accorded " 'great deference'
" under settled  law. Maj. Op. at 11 (citing Illinois v. Gates, 462
U.S. 213, 236  (1983)). In Gates, however, the Supreme Court made
clear  that the deferential standard of appellate review applicable to
 search warrants stems directly from the intensely fact-bound  nature
of an issuing magistrate's probable-cause determina- tion. See 462
U.S. at 232 ("[P]robable cause is a fluid  concept--turning on the
assessment of probabilities in partic- ular factual contexts--not
readily, or even usefully, reduced  to a neat set of legal rules.");
id. at 241 ("[P]robable cause  deals 'with probabilities. These are
not technical; they are  the factual and practical considerations of
everyday life on  which reasonable and prudent men, not legal
technicians,  act.' ") (citation omitted). Unlike a magistrate, the
Special  Division does not "make a practical, common-sense decision" 
about probabilities when it considers requests for referrals.  Id. at
238. Rather, it compares two legal documents--the  independent
counsel's referral request and the original grant  of prosecutorial
jurisdiction--and then determines whether  the former is "related to"
the latter within the meaning of the  statute. Like a court evaluating
a complaint on a motion to  dismiss, the Special Division finds no
facts, weighs no evi- dence, and makes no credibility determinations.
It simply  decides a question of law. Given the interpretive nature of
 this task, deference cannot be justified on the grounds "that 


the [Special Division] is 'better positioned' than the appellate 
court to decide the issue in question or that probing appellate 
scrutiny will not contribute to the clarity of legal doctrine."  Salve
Regina College, 499 U.S. at 233.


It is true that a referral under the independent counsel  statute
presents a situation "[w]here ... the relevant legal  principle can be
given meaning only through its application to  the particular
circumstances of a case." Miller v. Fenton,  474 U.S. 104, 114 (1985).
But the Supreme Court has direct- ed that in such situations a federal
appellate court must  retain "its primary function as an expositor of
law." Id. De  novo appellate review is particularly important where,
as  here, the relevant legal principle has constitutional dimen-
sions. See, e.g., Thompson v. Keohane, 516 U.S. 99, 107  (1995)
(requiring federal habeas court to review de novo  whether suspect was
"in custody" at time of interrogation for  purposes of Miranda);
Miller, 474 U.S. at 112 (requiring  "independent federal
determination" of the voluntariness of a  confession).


I disagree that referrals will have no real function under  the statute
unless we defer to the Special Division. See Maj.  Op. at 11. For one
thing, the Special Division's referral  authority provides independent
counsel, sensitive to both the  limitations on their office and the
ethic of self-restraint hon- ored by federal prosecutors, with an
avenue for seeking  independent and impartial confirmation of their
authority.  Immune from direct judicial review, a referral gives
legitima- cy to an independent counsel's investigation even if a
federal  court later determines that a specific indictment exceeds the
 prosecutor's jurisdiction. This legitimacy provides a level of 
protection against any attempt by the Attorney General to  remove or
by Congress to impeach an independent counsel on  the grounds that he
has overstepped his authority. See 28  U.S.C. s 596(a)(1). The
referral process also empowers the  Special Division to enforce the
boundaries of independent  counsel jurisdiction. Where the Special
Division rejects a  request for referral, only the most zealous and
imprudent  prosecutor would pursue matters covered by the rejected 
application. Far from existing "simply to relieve the solitude 


of the Independent Counsel's office," Maj. Op. at 11, the  referral
power thus serves important functions under the  statutory scheme,
constraining independent counsel when  they near the limit of their
authority and safeguarding their  political independence if their
investigative authority is chal- lenged.


For all of these reasons, I would hold that this court owes  no
deference to the Special Division's "related to" determina- tion. In
assessing the legality of this tax indictment, our  review should be


III


This court's conclusion that the Independent Counsel has  authority to
proceed with this indictment stems from its view,  flawed in my
judgment, that we would "undercut [Morrison]"  were we to construe the
independent counsel statute in ways  "that prevent this Independent
Counsel from performing his  duty in a manner reasonably approximating
that of an ordi- nary prosecutor." Maj. Op. at 20. Insisting on
affording the  Independent Counsel the same "leeway," id. at 15, given
to  "every other prosecutor," id. at 19, the court ignores the basic 
premise critical to the constitutionality of the statute: Inde-
pendent counsel do not and cannot have the powers of  ordinary
prosecutors. If they did, the office would " 'imper- missibly
undermine[ ]' the powers of the Executive Branch."  Morrison, 487 U.S.
at 695 (citation omitted). Among other  constraints, it is the limited
jurisdiction of independent coun- sel that "give[s] the Executive
Branch sufficient control over  the independent counsel to ensure that
the President is able  to perform his constitutionally assigned
duties." Id. at 696.  That an ordinary federal prosecutor might have
authority to  indict Hubbell for tax evasion therefore tells us
nothing about  whether this Independent Counsel--constrained by the
stat- ute and the separation of powers principle--may bring the  same
indictment. Nor do we learn anything from the author- ity possessed by
the Watergate Special Prosecutor, see Maj.  Op. at 17, for the full


from the Attorney General, thus presenting no separation of  powers
concerns.


Reviewing the record de novo, I would find that the indict- ment of
Hubbell for tax evasion was not "demonstrably  related to the factual
circumstances that gave rise to the  Attorney General's investigation
and request for the appoint- ment of the independent counsel."
Morrison, 487 U.S. at  679. Hubbell's alleged failure to pay taxes on
fees for work  from 1994 to 1997 in Washington, D.C., is unrelated to 
whether, almost a decade earlier in Little Rock, Arkansas,  "any
individuals or entities have committed a violation of any  federal
criminal law ... relating in any way to James B.  McDougal's,
President William Jefferson Clinton's, or Mrs.  Hillary Rodham
Clinton's relationship with Madison Guaranty  Savings and Loan
Association, Whitewater Development Cor- poration, or Capital
Management Services, Inc." Application  for Appointment of Independent
Counsel. The Attorney  General who prescribed the original subject
matter for inves- tigation agrees. According to her amicus brief:


[A]n offense cannot be 'related' within the meaning of  [the statute]
solely because an independent counsel dis- covers it during a
legitimate phase of his investigation.  That interpretation of the
statute would allow an inde- pendent counsel to prosecute offenses
that bear no rela- tionship to his original grant of jurisdiction.


Amicus Br. for United States at 32. "The current prosecu- tion," the
Attorney General concludes, "does not fall within  [the Independent
Counsel's] authority directly to investigate  the Whitewater/Madison
Guaranty matter." Id. at 34.


In reaching the opposite conclusion, this court rests its  finding of
"relatedness" on two assumptions: that the fees  Hubbell received were
payments for his silence, and that his  failure to pay taxes on them
had an obstructive effect on the  Whitewater investigation. In my
view, both assumptions are  flawed, and each independently undermines
the statutory and  constitutional constraints on independent counsel
jurisdiction.


Assumption of obstructive effect


I begin with the court's second assumption, i.e., that Hub- bell's
failure to pay taxes on alleged hush money had an  obstructive effect
on the Whitewater investigation. Not limit- ed to Hubbell's failure to
pay taxes on alleged hush money,  the indictment's sheer breadth
belies the court's obstruction  theory. The indictment charges Hubbell
with non-payment  of taxes on income from a book contract with
HarpersCollins  Publishers, early withdrawals from an IRA account and
pen- sion plan, and sales of his home and a Little Rock warehouse.  In
addition, by charging Hubbell's lawyer and accountant for  aiding and
abetting tax evasion, the Independent Counsel did  not limit the
indictment to individuals who could have ob- structed the Whitewater


According to my colleagues, "any criminal conduct that  could hide the
hush money ... tends to impede investigation  and prosecution of the
matter being hushed up." Maj. Op. at  16. "The less disclosure of the
payments," they say, "the less  chance that they and their nature will
come to light...." Id.  But even assuming that Hubbell's "consulting"
fees were  hush money (an assumption not supported by this record, see
 infra at 16-17), the facts of this case provide no support for  the
court's concealment theory. In his 1994 tax return,  Hubbell actually
disclosed $376,075 in "consulting" income  that the Independent
Counsel suspects is hush money. This  amount included $100,000 from
Hong Kong China Limited  and $62,775 from Revlon, the two sources the
court high- lights, see Maj. Op. at 4-5 & n.1, en route to finding
that  "[t]he timing, sources, and extent of the payments make the 
belief that they were hush money reasonable," id. at 20. 
Acknowledging these disclosures, the court rests its finding of 
concealment on the fact that Hubbell did not report an  additional
$77,000 in "consulting" fees in 1994. See Maj. Op.  at 16. But since
Hubbell disclosed the lion's share of the  alleged hush money on his
1994 tax return--including the  very payments that the Independent
Counsel and my col- leagues believe have the strongest whiff of
obstruction--it  seems odd to think that Hubbell chose not to disclose
the  remaining fraction in order to conceal hush money payments. 


In any case, nothing in the record (beyond the non-disclosure  itself)
suggests that the $77,000 was hush money. See infra  at 16-17. We thus
lack any basis for suspecting that Hub- bell's non-disclosure
reflected a concerted effort to hide hush  money instead of a tendency
(generally apparent from the  indictment) to ignore the internal
revenue laws.


The court's concealment theory makes much more sense in  a case like
United States v. Haldeman, 559 F.2d 31 (D.C. Cir.  1976), cited in
Maj. Op. 17. There the defendants directly  obstructed the Watergate
investigation by lying under oath to  the Special Prosecutor, a grand
jury, and a Senate committee  about hush money payments they had made
to the Watergate  burglars. See 559 F.2d at 59; see also United States
v.  Blackley, No. 98-3036, slip op. at 9 (D.C. Cir. Jan. 26, 1999) 
(upholding conviction of high-ranking Department of Agricul- ture
official who concealed payments he received from indi- viduals
regulated by the Department by failing to disclose  those payments on
an official financial disclosure form whose  very purpose was "to
bring suspicious influences to the  surface").


The court next adopts the Independent Counsel's argument  that
Hubbell's failure to pay taxes "enhanc[ed] the financial  or economic
effect of the hush money payments.... And  that contributes to the
obstruction of the investigation." Oral  Arg. Tr. at 16; see Maj. Op.
at 16 ("[T]he more value Hubbell  can squeeze from hush money ... ,
the more chance it will  succeed in preventing his cooperation."). But
even if we  again assume the payments to be hush money, their obstruc-
tive effect ended upon Hubbell's receipt; his subsequent non- payment
of taxes bought his benefactors no further silence.  The Independent
Counsel never alleged that Hubbell's bene- factors somehow discounted
the value of the alleged hush  money by the probability that he would
not pay taxes. In- deed, who could have foreseen the bizarre nature of
the tax  evasion scheme detailed in the indictment? Who would have 
expected that, having reported $376,075 of his $450,010 in 
"consulting" income on his 1994 tax return, Hubbell would  then, as
with his other income, not pay taxes on it?


The court's economic enhancement theory permits virtually  unlimited
expansion of the Independent Counsel's jurisdic- tion. Had Hubbell
used the alleged hush money for profit- able but illegal gambling or
insider trading, for example, this  theory would allow the Independent
Counsel to indict him for  these crimes simply because they increased
the value of the  money. Surely this result stretches the concept of
"related- ness" beyond its statutory and constitutional breaking


Together, the concealment and economic enhancement the- ories enable
the Independent Counsel to comb through all of  Hubbell's investments
and expenditures--including, as the  indictment reveals, his purchase
of clothes, groceries, and  laundry services--until discovering some
illegality on which  to indict him. By adopting these theories, the
court converts  the Office of the Independent Counsel from a device
for  investigating a specific "subject matter," 28 U.S.C.  s
593(b)(3), into a tool for prosecuting a specific individual.  As the
district court observed, "[t]he Madison-Whitewater  matters that were
the subject of the Original Grant and the  tax matters that are the
subject of this case have nothing in  common--nothing, at least, that
appears on this record-- except Webster Hubbell." United States v.
Hubbell, 11  F. Supp. 2d 25, 32 (D.D.C. 1998). This is precisely the
result  Justice Scalia, dissenting in Morrison, most feared:


[T]he most dangerous power of the prosecutor [is] that  he will pick
people that he thinks he should get, rather  than cases that need to
be prosecuted. With the law  books filled with a great assortment of
crimes, a prosecu- tor stands a fair chance of finding at least a
technical  violation of some act on the part of almost anyone. In 
such a case, it is not a question of discovering the  commission of a
crime and then looking for the man who  has committed it, it is a
question of picking the man and  then searching the law books, or
putting investigators to  work, to pin some offense on him.


487 U.S. at 728 (Scalia, J., dissenting) (quoting then-Attorney 
General Robert Jackson, The Federal Prosecutor, Address 


Delivered at the Second Annual Conference of United States  Attorneys
(April 1, 1940)).


Deeply corrosive to the statutory and constitutional limits  on
independent counsel jurisdiction, the court's concealment  and
economic enhancement theories cannot justify a finding  of
"relatedness" in this case. In my view, this conclusion in  and of
itself is enough to sustain the district court's quashing  of the
indictment. But because the court's contrary holding  also rests on
the assumption that Hubbell's fees were hush  money, I set forth my


Assumption that Hubbell's fees were hush money


Even if the court's concealment and economic enhancement  theories had
merit, they have no applicability to this case for  one simple reason:
Although both depend entirely upon  Hubbell's involvement in an
underlying crime of obstruction,  this record contains no credible
evidence of such a crime.


In his brief, the Independent Counsel refers to the "possi- bility"
that Hubbell "might have accepted money as an in- ducement to obstruct
the Madison investigation." OIC Br. at  20 (emphasis added); see also
id. (stating that "large pay- ments" on which Hubbell did not pay
taxes "may be related  to his non-cooperation with respect to
Whitewater and  Madison-related matters") (emphasis added). Yet the
Inde- pendent Counsel has chosen not to indict Hubbell for accept- ing
hush money payments or anyone else for making them.  Although I agree
with my colleagues that the Independent  Counsel need not formally
charge Hubbell for accepting hush  money in order to indict him for
tax evasion, I disagree that  we may sustain the tax indictment simply
because the Inde- pendent Counsel is "diligently pursuing his
investigation of  the main allegation that [hush] money was channeled
to  Hubbell," Wald Op. at 1. Without credible evidence that  Hubbell
accepted hush money, there can be no "demon- strabl[e] relat[ionship]"
between Hubbell's tax crimes and the  Independent Counsel's original
grant of jurisdiction. Morri- son, 487 U.S. at 679 (emphasis added).


At oral argument, the Independent Counsel conceded that  "we right now,
as a matter of public record, don't know" that 


Hubbell's "consulting" income was hush money. Oral Arg.  Tr. at 13.
Notwithstanding this uncertainty, my colleagues  have seen no need
either to accept the Independent Counsel's  offer to submit evidence
in camera--evidence that he claims  shows that the commission of that
crime was more likely than  not, see id.--or to remand to the district
court to consider  such evidence. Instead, they accede to his request
that we  not "indulge in the assumption that there is no evidence of 
obstruction," id., shoring up the Independent Counsel's innu- endo
with non-record evidence plus a little innuendo of their  own, see
Maj. Op. at 4-5 n.1.


The record in this case is quite unlike the record in United  States v.
Haldeman, where this court upheld the convictions  of H.R. Haldeman,
John Ehrlichman, and John Mitchell for  "conceal[ing] a cover-up" in
the Watergate affair. Maj. Op.  at 17 (emphasis omitted). In that
case, the allegations that  the defendants paid hush money to the
Watergate burglars  and then lied about it under oath were supported
by vast  amounts of credible evidence, primarily consisting of direct 
testimony and tape recordings of key conversations among  the
co-conspirators. See Haldeman, 559 F.2d at 55-59 (de- scribing
defendants' "commitments" to pay the burglars hush  money and
detailing defendants' extensive conspiracy to raise,  transfer,
deliver, and conceal the hush money payments).


My colleagues say that independent counsel should enjoy  the same
discretion that U.S. Attorneys have to charge  defendants with
"cover-up" crimes without charging them for  the underlying crimes.
See Maj. Op. at 18 (citing Depart- ment of Justice guidelines). But as
I have pointed out,  Hubbell's tax offenses cannot plausibly be
labeled "cover-up"  crimes. See supra at 13-14. Moreover, the court's
analogy  is constitutionally flawed. It ignores the critical fact that
 U.S. Attorneys, unlike independent counsel, never need to  prove that
a particular crime falls within the jurisdiction  ceded to them. They
have authority to follow a trail of  criminality and (subject to
Justice Department procedures  described below) to convert an
investigation of real estate  fraud into a prosecution of tax crimes.


separation of powers precludes anything, it precludes the  extension
of such vast discretion to independent prosecutors  who lack "the
unifying influence of the Justice Department"  and "the perspective
that multiple responsibilities provide."  487 U.S. at 732 (Scalia, J.,
dissenting).


IV


Finally, in addition to adopting virtually limitless theories  of
"relatedness" and assuming that Hubbell accepted hush  money, my
colleagues discount the constitutionally significant  requirement that
independent counsel "comply with the writ- ten or other established
policies of the Department of Justice  respecting enforcement of the
criminal laws" unless "to do so  would be inconsistent with the
purposes of the [Act]." 28  U.S.C. s 594(f)(1); see Morrison, 487 U.S.
at 696. Under  Department of Justice Tax Division Directive 86-59, all
feder- al prosecutors, expressly including independent counsel, must 
follow certain procedures before "seeking to expand nontax  grand jury
investigations to include inquiry into possible  federal criminal tax
violations." Authority to Approve Grand  Jury Expansion Requests to
Include Federal Criminal Tax  Violations, 5 Dep't of Justice Manual
6-227, 6-227 (1995-1  Supp.). This directive prevents prosecutors from
targeting  an individual for tax crimes when their investigative
authority  extends only to a non-tax criminal investigation.
Specifically,  it requires all prosecutors to submit written requests
to  officials at the Internal Revenue Service and Tax Division 
"containing pertinent information relating to the alleged fed- eral
tax offenses." Id. at 6-228. Approval requires an IRS  referral
certifying that "there is reason to believe that federal  criminal tax
violations have been committed." Id. at 6-229.  In addition,
prosecutors must conduct grand jury proceedings  "in sufficient time
to allow the results of the tax segment of  the grand jury proceedings
to be evaluated by the Internal  Revenue Service and the Tax Division
before undertaking to  initiate criminal proceedings." Id.


In this case, I see no reason why the Independent Counsel  could not
have complied with Tax Directive 86-59. My 


colleagues are willing to assume that requiring such compli- ance
would be "inconsistent with the purposes" of the inde- pendent counsel
statute, 28 U.S.C. s 594(f)(1), attributing to  the IRS--merely
because it is an executive branch agency--a  conflict of interest so
severe that it cannot make a reasoned  judgment as to whether Hubbell
should be prosecuted for tax  crimes. They apparently view compliance
with Justice De- partment procedures as categorically "inconsistent
with the  purposes" of the statute whenever such procedures submit 
federal prosecutors to oversight by executive branch agencies.  Surely
section 594(f)(1) is not so toothless. This provision,  which at the
time of Morrison required compliance "except  where not possible," 28
U.S.C. s 594(f) (Supp. V 1983)  (amended 1994), was viewed by the
Supreme Court as one of  the statutory safeguards ensuring that the
Executive Branch  has enough control over independent counsel to
accomplish its  constitutionally assigned functions. See Morrison, 487


V


In sum, I believe that the court's finding of "relatedness"-- premised
on deference to the Special Division, unbounded  theories of
obstruction of justice, and unsubstantiated suspi- cions of
illegality--undermines the constitutional constraints  on independent
counsel jurisdiction. Morrison endowed the  statute's jurisdictional
controls with constitutional significance  because it recognized that
the absence of such controls would  enable independent counsel to
usurp executive power. This  case provides reason to worry that the
Office of the Indepen- dent Counsel indeed functions as a
"mini-Executive ... oper- ating in an area where so little is law and
so much is  discretion." Morrison, 487 U.S. at 732 (Scalia, J.,
dissenting).  Because the constitutional separation of powers demands 
greater vigilance, I believe that this Independent Counsel has 


My conclusion would not impair the Ethics in Government  Act's "central
purpose ... [of] permit[ting] the effective  investigation and
prosecution of high level government and 


campaign officials," United States v. Wilson, 26 F.3d 142, 148  (D.C.
Cir. 1994), quoted in Maj. Op. at 15. This Independent  Counsel's
original grant gives him all the authority he needs  to prosecute
Hubbell and others for obstruction of justice if  he has evidence that
Hubbell received hush money. See 28  U.S.C. s 593(b)(3). If he wants
to prosecute Hubbell for self- standing tax offenses discovered in the
course of his investi- gation, he can ask the Attorney General to
expand his investi- gative jurisdiction, see id. s 593(c), and then
set in motion  Justice Department procedures for prosecuting criminal
tax  violations, see supra at 18. As the subsequent indictment of 
Hubbell illustrates, see Neil A. Lewis, Starr Indicts Hubbell a  3d
Time, N.Y. Times, Nov. 14, 1998, at A1, the Independent  Counsel,
short of pursuing this tax indictment, retains vast  investigative and
prosecutorial authority under the Special  Division's January 1998


I respectfully dissent.


Williams, Circuit Judge, dissenting from Part II: The  commentator who
predicted that Fisher and Doe would "inev- itably lead" to
"metaphysical speculation" was apparently all  too prescient. See
Samuel A. Alito, Jr., "Documents and the  Privilege Against
Self-Incrimination," 48 U. Pitt. L. Rev. 27,  59 (1986). The majority
opinion supplies some such specula- tion and demands more from the
district court on remand. I  would limit the district court's inquiry
about the subpoenaed  documents to verifying that the Independent
Counsel, in  securing Hubbell's indictment, has only used information
that  he would have had if the documents had appeared in his  office,
unsolicited and without explanation.


* * *


It is clear that a prosecutor who has obtained personal  documents by
subpoena may not, without violating either the  Fifth Amendment or a
use immunity of equivalent scope  granted under 28 U.S.C. s 6002, use
against the subpoenaed  person any testimonial, incriminating
information that is com- municated by that person's "act of
production" of the docu- ments. See Doe v. United States, 487 U.S.
201, 209 (1988)  ("Doe II"). The Supreme Court identified three
species of  information possibly communicated by such an act of
produc- tion--possession, authentication and existence. See id.


Here the only interesting issue is the "existence" theory;  possession
and authentication seem properly outside the case.  Hubbell's prior
possession is irrelevant if, as appears to be  the case, the
Independent Counsel relied on the documents  only for the information
that they contain, and thus had no  occasion to rely on Hubbell's act
of production, or anything  else, for evidence that Hubbell at one
time had "possessed"  them. Nor does it appear that he used the
production for  authentication; he never sought to show the grand jury
that  Hubbell, by delivering the documents in response to the 
subpoena, had identified them as being ones that matched the 
descriptive language of the subpoena.


Thus we are left with "existence." From the truism that  the
Independent Counsel could not use the contents of the 


documents unless they (at some time) existed, and unless he  learned
of that existence, the majority leaps to the proposi- tion that the
Independent Counsel's awareness of their exis- tence stems from a
testimonial aspect of Hubbell's act of  production. Accordingly, it
says, the Independent Counsel  may use the information in the
documents if but only if he can  show that he possessed, before
securing the subpoena, a  knowledge of the documents' existence
sufficiently detailed  that his later knowledge, after their delivery,
was a "foregone  conclusion."


But not all aspects of the act of production are testimonial.  Where an
item of information that the prosecutor receives  from a document
delivery flows from a non-testimonial as- pect, he does not depend on
any testimonial aspect. Informa- tion as to the existence of the
pieces of paper turned over by  a subpoenaed party can always be
traced to non-testimonial  information. I elaborate below.


* * *


"Testimonial." Before the Fisher Court introduced the  "foregone
conclusion" discussion on which the majority is so  focused--and which
I discuss below--it observed that the  whole issue of whether
something is "testimonial" depends on  the facts and circumstances.
Fisher v. United States, 425  U.S. 391, 410 (1976). But what facts and
circumstances are  relevant?


One possibility might be that all actions from which we can  glean
information are considered testimonial communications  for purposes of
Fifth Amendment analysis. But the prece- dents upon which Fisher
relied in more or less rejecting the  view of Boyd v. United States,
116 U.S. 616 (1886), that the  Fifth Amendment protects the contents
of subpoenaed docu- ments, appear to rule this out. Those cases
involve the  government forcing a person to try on a blouse worn by
the  perpetrator to establish whether it fit the defendant, Holt v. 
United States, 218 U.S. 245 (1910), or to give blood samples, 
Schmerber v. California, 384 U.S. 757, 764-65 (1966), voice  samples,
United States v. Wade, 388 U.S. 218, 222-23 (1967), 


or handwriting samples, Gilbert v. California, 388 U.S. 263,  266-67
(1967). They do not rely on anything like the "fore- gone conclusion"
rationale; instead, they find that such acts  are not testimonial
because they fit into the category of  "compulsion which makes a
suspect or accused the source of  'real or physical evidence.' "
Schmerber, 384 U.S. at 764.


Nor can these cases be recharacterized as ones where the  prosecutor's
grasp of the information obtained was a foregone  conclusion. Of
course it is true that, for example, it is  typically not much to
admit that one can speak. But in giving  a voice sample, one also
admits that one's voice has various  characteristic idiosyncrasies--a
non-obvious and incriminating  fact that the law allows the prosecutor
to secure by compul- sion. The prosecutor's and jury's access to that
information  is as dependent on the speaker's compelled implicit
admission  of ability to speak as their access to the information on 
documents is dependent on the subpoenaed party's implicit  admission
of the documents' existence.


One can, of course, discern a communicative element in the  giving of a
voice sample: a person commanded to speak  implicitly says, "This is
the way I sound when I speak." But  that information adds nothing to
what a jury learns from its  own ears (or from a properly
authenticated tape, if that is the  way it is done, see, e.g., United
States v. Dionisio, 410 U.S. 1  (1973) (grand jury subpoena requiring
suspects to read tran- scripts into a recording device is consistent
with Fifth  Amendment)). Similarly, a person giving a blood sample 
implicitly says, "This is my blood." Though there is implicit 
communication, the prosecutor need not rely on it, so long as  he has
the blood and a witness to the blood-giving itself.


"Foregone Conclusion." The most confusing part of Fisher  is the
language that the courts have taken to tie "foregone  conclusion"
closely to the "testimonial" analysis and vice  versa. 425 U.S. at
411. The Court said: "Surely the Govern- ment is in no way relying on
the 'truthtelling' of the taxpayer  to prove the existence of or his
access to the documents. The  existence and location of the papers are
a foregone conclu- sion...." Id. (citation omitted). In my view, the


sentence should be read in light of the former. That is,  "foregone
conclusion" is only a subset of the broader set:  instances where
sources independent of testimonial aspects of  the compulsion fully
account for the prosecutor's evidence.


This relationship is illustrated in an example used in Fish- er: "When
an accused is required to submit a handwriting  exemplar he admits his
ability to write and impliedly asserts  that the exemplar is his
writing. But in common experience,  the first would be a near truism
and the latter self-evident."  Id. The Court here is implicitly
referring to Gilbert v.  California, 388 U.S. at 265-67, one of the
cases it had just  relied upon in more or less overruling Boyd. In
Gilbert, the  police got the suspect to write out some handwriting
exem- plars while he was in custody and being questioned. When  the
Court calls the implicit admission of ability to write a 
"near-truism," the "near" is critical. Consider a kidnapping,  in
which a ransom note is a major piece of evidence, but the  suspect
claims illiteracy. Suppose police, posing as terrorists,  frightened
him into writing something (the text of which had  no bearing on the
kidnapping). There might be some sort of  due process argument, but in
using the handwriting sample  the prosecutor would not need to rely on
any implicit testimo- nial aspect of the scenario ("Yes, I do know how
to write.");  accordingly he could use the sample without violation of
the  defendant's privilege against self-incrimination.


More important is the defendant's implicit admission that  the
exemplars are his. This is not, strictly speaking, "self- evident";
rather, it is supported by evidence (the testimony of  the witnessing
police officers) of a non-testimonial aspect of  the act of
production, here the act of writing. But as the  Court says, the
government is "in no way relying on the  'truthtelling' of
[defendant]" to prove anything: it is relying  only on the immediate
personal observations of the policemen  and on nontestimonial aspects
of the defendant's act to link  the handwriting to the defendant.
Everything else of eviden- tiary value, namely the idiosyncrasies of
the writing, depends  only on the writing itself. As we'll see more
explicitly below,  this matches the relation of a prosecutor to
documents deliv- ered pursuant to subpoena. The information on the


ments stands or falls on its own value, even though (by  definition)
produced by the defendant's act of production.  Thus: for handwriting,
the link to the defendant is estab- lished by police witnesses and the
testimonial value of the  defendant's act of production is redundant;
for documentary  information, so long as the prosecutor depends as
here only  on information in the documents themselves for the link to 
defendant, the communicative aspect of the act of delivery is  equally
redundant.


Existence. In light of the above, the only sense of "exis- tence" that
is covered by the Fifth Amendment is that which  refers back to the
subpoena. The responsiveness of the  documents to the subpoena gives
knowledge of "the existence  of the papers demanded," 425 U.S. at 410
(emphasis added).  "Yes, these are the records you described in the
subpoena."  If the government could refer back to the subpoena to 
identify documents and to clarify relationships that were not  clear
on their face or by other independent means, then it  would be using a
testimonial component of the transaction-- the witness's implicit
statement that the documents match the  subpoena's description.
Hubbell's claim for blanket exclusion  of the contents, by contrast,
relies on existence in a quite  different sense--the fact that these
particular pieces of paper  are in being. But this is quite easily
confirmed by these  papers' own physical presence, which is
"self-evident" at the  time and place of production and so long
thereafter as the  government maintains proper custody. Existence in
that  sense is as "self-evident" as the blood and its characteristics 
in Schmerber, the voice samples and their characteristics in  Wade,
and the handwriting and its characteristics in Gilbert.


Some of the language in Fisher and Doe, to be sure,  suggests a more
sweeping view of "existence." Fisher I have  discussed above. Doe
upholds a decision quashing certain  subpoenas, based on trial court
findings (endorsed by the  court of appeals) that delivery of the
documents gave the  prosecutor previously absent knowledge of their
existence,  possession, and authenticity. See United States v. Doe,
465  U.S. 605, 613-14 & nn.11-13 (1984). But the implications are 


quite unclear. The Court relied explicitly and entirely on the  "two
courts" rule. Id. While the majority argues that the  findings below
were structurally applications of law to fact,  see Maj. at 34-35
n.24, the Court's treatment of them was as  simple fact. Second, to
the extent that its rehearsing of the  arguments embraced in the
courts below may suggest the  sort of "existence" theory employed by
the majority, the  inference is drawn in question by the Court's
reliance on the  anticipated use of the act of production for
authentication of  the documents, i.e., use of an indisputably
testimonial aspect  of subpoena compliance. See 465 U.S. at 614


Accordingly, the logic of Fisher and Doe, if not every  phrase, clearly
supports the prosecutor's right to use informa- tion from subpoenaed
documents regardless of whether he  was previously able to describe
them. The particular docu- ments' existence speaks for itself once
they have been deliv- ered; so long as his use of them is independent
of any  testimonial aspects of the witness's act of production, that 
use is consistent with the witness's Fifth Amendment privi- lege.


* * *


The majority confuses the issue with a rather odd distinc- tion: if
compulsion "acts upon, and requires the exercise of an  individual's
mental faculties for communication," it is testimo- nial; if it
"merely utilizes the body of the accused as a form of  evidence," it
is not. Maj. at 39.


To the extent that the majority here acknowledges that the  bare
physical aspects of a production--the meanings that are  directly
apparent to the senses--are unprotected by the Fifth  Amendment, it is
correct. But there is no reason to restrict  this to the "body of the
accused."


In fact, the majority fails to explain the cases that fall  outside
this apparent restriction. Gilbert v. California, ap- provingly cited
by the majority, concerned a handwriting  sample that the suspect had
to write out and then turn over  to the police. But more telling is
Baltimore Dept. of Social  Servs. v. Bouknight, 493 U.S. 549, 554-55
(1990). In that 


case, a woman was ordered to turn over a child whom she was  believed
to have abused and who was last seen in her custody.  The Court held,
among other things, that the woman "cannot  claim the privilege based
upon anything that examination of  [the child] might reveal."


Thus in Bouknight it was not the body of the accused that  was used as
a form of evidence, but the body of another.  Documents are exactly
analogous: physical objects the exami- nation of which yields
evidentiary value or clues. Documents  do, of course, represent the
concrete embodiment of mental  activity, but that is a false lead:
these thoughts (the contents  of the documents) were, we assume, put
to paper quite  voluntarily--if they were not, they would
unquestionably be  protected. See Doe, 465 U.S. at 610-11. In
Bouknight the  Court was obviously indifferent to the necessity that
the  suspect find and turn over a child whose location was com-
pletely unknown to the government; the court here should be  equally
indifferent to the necessity that Hubbell do the same  for


Delivery of the child in Bouknight clearly depended on the  suspect's
exercise of her mental faculties; in fact, her intellec- tual efforts
turning up the child were no less then they would  have been had the
government known its whereabouts in  advance. The case thus flatly
contradicts the majority idea  that self-incrimination occurs whenever
the subpoena "re- quires the exercise of an individual's mental
faculties." The  majority might say, with internal consistency though
not with  conformity to the cases, that the government may use the 
product of forced mental exercise so long the mental exercise  is no
more than an automaton's execution of intellection  already carried
out by the government. But that would take  it to the position that a
document subpoena must itself set  forth whatever descriptive detail
is necessary (under the  majority's murky test) about the documents'
character and  location. Even the majority evidently recoils at this


There are of course non-physical aspects to the production  in
Bouknight. In another part of that opinion, the Court 


used a different analysis for the suspect's "implicit communi- cation
of control over [the child] at the moment of produc- tion," 493 U.S.
at 455, saying that although this was arguably  an incriminating
"testimonial assertion," id., some uses of it  might be permissible
under the doctrine that the Fifth  Amendment may not be invoked to
resist compliance with  certain types of regulatory regimes, id. at
555-62. Here, of  course, the government has no interest in Hubbell's
control of  the documents at the moment of production, and seeks to 
draw no inferences from that control. But the majority's  concern here
with information about the documents before  their delivery is utterly
different from the Bouknight Court's  focus on "the moment of


* * *


The majority's confusion is further evident in its attempt to  draw
some distinction between whether something is "testi- monial" and
whether it has "testimonial value." See Maj. at  42 n.27, 45-46 n.31.
This dissent, the majority argues,  wrongly frames the former rather
than the latter issue as the  key. Putting aside such issues as
whether this terminological  difference makes sense--if something is
not "testimonial," its  "testimonial value" is obviously zero--or is
to be found in the  cases--Fisher, for example, simply refers to "the
more diffi- cult issue[ ]" of "whether the tacit averments ... are [ ]
 testimonial," 425 U.S. 410--the actual analysis endorsed by  the
majority is not much different from the analysis in the  "Foregone
Conclusion" section above. The majority writes:


Where the government need not rely upon the truthtell- ing of the
witness, because it has prior knowledge of the  information that will
be communicated through the act  of production, 'no constitutional
rights are touched.'


Maj. at 46 n.31 (emphasis added) (quoting Fisher). The only 
disagreement here is the italicized portion: for some rea- son, the
majority believes that possession of "prior knowl- edge" is the only
circumstance in which the government  "need not rely upon the
truthtelling of the witness." But the  majority never explains how,
under its theory, there is no 


testimonial self-incrimination if the government need not rely 
because it already knows, while there is testimonial self-
incrimination if the government has another reason for dis- pensing
with reliance on communicative aspects of the wit- ness's acts. Nor
could any such explanation be consistent  with precedent. In
Bouknight, which concerned a subpoena  to turn over a missing child,
the Court found that the target  could not "assert the privilege upon
the theory that compli- ance would assert that the child produced is
in fact [the child  sought]" because that fact was one "the State
could readily  establish," 493 U.S. at 555, despite the fact that the
govern- ment could not have made such a finding until after the 
production.1 Here, too, the government need not rely on any 
communicative or testimonial aspect of Hubbell's act of pro- duction;
once it acquired the documents, their intrinsic value  evidently
served its purposes quite adequately. The majority  imposes a wholly
artificial and impermissible limitation on the  reasons for which the
government "need not rely" on testimo- nial implications of the act of


* * *


For a district judge, the challenge of the majority's view is  to
determine the "quantum" of relative prosecutorial igno- rance that
triggers a self-incrimination violation. Prosecutors  know that
businessmen keep business records (just as they  know that living
humans have blood and literate persons have  handwriting); this is
plainly too little information for the  majority. But evidently the
prosecutor need not have ad- vance knowledge of the details that he is
interested in. See  Maj. at 54. Somewhere in that range is an




__________

n 1 The majority appears to believe that this fact--the match of the 
child produced to the child sought--was a "foregone conclusion" 
because "presumably his social worker could testify as to his 
identity." Maj. at 43 n.27. This indicates either that the majority's 
definition of "foregone conclusion" includes things that only become 
apparent after the production itself--in which case the majority has 
no reason to disagree with this opinion--or that the majority 
believes that there is some way in which one can "readily establish" 
the identity of a person or thing that cannot yet be inspected.


which, unlike the equator, can never be fixed or defined with 
clarity. Henceforth, therefore, the operational meaning of  the "act
of production" doctrine in our circuit will largely turn  on district
courts' discretion in this metaphysical classification  of
prosecutors' knowledge.


Though recognizing that no other court has applied its  mind/body
distinction explicitly, the majority claims that the  existing
lower-court cases can be lined up to fit. If so, this  seems to me
only because the factual detail of the cases is so  skimpy and the
majority's test so elastic. And to the extent  that the cases can
fairly be viewed as embracing the majori- ty's readiness to squeeze
production immunity into a simple  "foregone conclusion" analysis,
they miss the point. "Fore- gone conclusion" is just one species of
one part of the  doctrinal structure the Supreme Court has set out;
the  majority's obsession with that phrase diverts its focus from  the
key issue, the presence (or absence) of "testimonial" 


Let us return to blood and handwriting, the contexts for  the key
decisions underlying Fisher. Of course live humans  have blood; of
course literate humans have handwriting.  These propositions are
virtually true by definition. But the  interesting data from blood and
handwriting sample--blood  type, DNA information, handwriting
idiosyncrasies--are  characteristically unknown to the government in
advance.  The admissibility of these data stems not from the govern-
ment's advance knowledge of the obvious, but from two  propositions:
(1) the critical information extracted from the  witness (DNA and
blood type, handwriting idiosyncrasies) is  non-testimonial in
character, see Fisher, 425 U.S. at 409, and  (2) the prosecutor's
knowledge of the link between the wit- ness, on the one hand, and the
blood and the handwriting, on  the other, is independent of the
communications that are  implicit in the witness's giving blood or
handwriting. Here,  similarly, the documents' informational content
(the equiva- lent of the DNA, etc.) is non-testimonial in character,
and the  Independent Counsel is interested in the documents' link to 
the witness only insofar as it is shown by the contents of the 


* * *


Sensibly construed, the act of production doctrine shields  the witness
from the use of any information (resulting from  his subpoena
response) beyond what the prosecutor would  receive if the documents
appeared in the grand jury room or  in his office unsolicited and
unmarked, like manna from  heaven. See DOJ Amicus Br. at 42; Alito,
supra, at 59-60.  The prosecutor would in such a case not be able to
identify,  verify someone's control over, or authenticate the
documents  except to the extent their own contents--or other sources--
did so. He would thus make no use of any testimonial aspect  of the
act of production. Yet, like DNA and handwriting  idiosyncrasies, the
contents would themselves be unprotected,  except to the extent that
deciphering might depend on the  context of the subpoena--the
information conveyed by the  suspect's implicit matching of them with


This distinction between contents and production is appar- ently missed
by the majority. Its first hypothetical of the  murder weapon claims
that this "manna from heaven" theory  would allow the government to
compel a suspect "to incrimi- nate himself verbally" by revealing the
location of the murder  weapon. But in the majority's hypo, the weapon
is obviously  the fruit of poisoned testimony: a revelation under
compul- sion. A more apt instance would be if a suspect had previous-
ly--without compulsion--written down the location in his day  planner,
and the government subpoenaed the planner. The  production of the day
planner, like the production of a  missing child, is compulsory but
non-testimonial. The much  more harmful contents are obviously
testimonial, but they are  not the fruit of any unlawful compulsion
(so long as the  government's use is independent of the context of the




__________

n 2 The majority's second hypothetical, see Maj. at 62-63, is too 
imprecise to bear much analysis, but if it posits that the government 
in fact relies upon the communication implicit in the defendant's 
delivery of the murder weapon to link it to him, then that weapon 
must of course be excluded. Moreover, the hypothetical subpoena 


On remand the only question should be whether the Inde- pendent Counsel
complied with the limits set by the above  principle. Accordingly, I
dissent on this issue.




__________

n might well be invalid for being "unreasonable or oppressive," Fed. 
R. Crim. P. 17(c)--a defect unrelated to self-incrimination.