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| "FISHING EXPEDITION"
July 2, 1998The NewsHour with Jim Lehrer Transcript |
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On Wednesday, a federal judge threw out tax evasion charges against former Associate Attorney General Webster Hubbell. In handing out the decision, Federal Judge James Robertson criticized Independent Counsel Kenneth Starr's tactics and stated he had exceeded his authority. Jim Lehrer and guests discuss the meaning of the ruling and its implications for the Starr investigation.
A RealAudio version of this segment is available.
NEWSHOUR LINKS:
June 29, 1998:
The Supreme Court upholds attorney-client privilege in the Vincent Foster case.
June 8, 1998:
The Supreme Court hears arguments in the Vincent Foster attorney-client privilege case.
June 4, 1998:
The Supreme Court refuses to expedite matters in the Ken Starr investigation.
May 1, 1998:
Dan Balz discusses the new charges against former Justice Department official Webster Hubbell.
April 16, 1998:
Ken Starr discusses his investigation with the press.
April 13, 1998:
A report on Ken Starr's subpoena of two Washington bookstores.
April 1, 1998:
A judge dismisses Paula Jones' case against the president.
March 3, 1998:
President Clinton's friend and confidant, Vernon Jordan, testified before the grand jury.
February 27, 1998:
Shields and Gigot discuss criticism of Starr's investigation .
February 26, 1998:
First Amendment implications of the Starr investigation.
February 24, 1998:
Clinton aide Sidney Blumenthal is called before the grand jury.
February 18, 1998:
Washington Post reporter Dan Balz discusses presidential adviser Bruce Lindsey's testimony before the grand jury.
February 6, 1998:
Perspectives on the Starr investigation from beyond the beltway.
January 26, 1998:
Experts debate the role of the independent counsel.
January 22, 1998:
Presidential historians and experts put the brewing crisis in perspective.
January 21, 1998:
President Clinton responds to charges that he may have had an affair with a former White House intern.
Browse the NewsHour's coverage of the White House and legal issues
OUTSIDE LINKS
The Washingtonpost.com's library of legal documents in the Starr investigation.
JIM LEHRER: Now a federal judge's review from Independent Counsel Kenneth Starr. Yesterday, Washington Judge James Robertson dismissed ten counts of tax evasion of former Justice Department official Webster Hubbell, his wife, accountant, and tax lawyer. The judge said Starr had violated an immunity agreement for indicting the four. He said a subpoena for Hubbell's records was "the quintessential fishing expedition. The independent counsel freely admits that he was not investigating tax-related charges when he issued it. Mr. Hubbell was therefore turned in the primary informant against himself."
Kenneth Starr's "scary" tactics.
Judge Robertson said in open court last week Starr's reasoning in this matter was scary. He also said in his written opinion Starr had no jurisdiction to investigate the Hubbell tax charges in the first place.
JIM LEHRER: Now the perspectives of two former federal prosecutors. Henry Hudson was the U.S. attorney for Northern Virginia during the Reagan and Bush administrations. Bruce Yannett was an assistant U.S. attorney in the District of Columbia and also worked with independent counsel Lawrence Walsh on the Iran-Contra investigation. Mr. Yannett, taking these points one at a time, first, was Judge Robertson correct in dismissing these charges?
BRUCE YANNETT, Former Federal Prosecutor: Well, I think it was definitely a courageous decision, Jim. It's a well reasoned opinion. I don't want to predict what the court of appeals would do with it when Mr. Starr appeals it. It is certainly, I think, is well reasoned and a sound opinion, and I think the right results.
JIM LEHRER: Why did you say courageous? Why was it courageous?
BRUCE YANNETT: Well, because it's rare for a judge to throw out a prosecution in its entirety. And given the highly public nature of this particular case and the stakes involved in the case I think it's a courageous decision.
JIM LEHRER: Mr. Hudson, courageous and sound?
HENRY HUDSON, Former Federal Prosecutor: I think it's a courageous decision, Jim, but there were two components to this decision. One dealt with the immunity and one dealt with jurisdiction. I think with respect to immunity, I believe Ken Starr may very well have violated that immunity that he gave to Web Hubbell. That immunity prohibits them from using the information from him, or any information derived from it. A strong argument there, well founded opinion. But the other side is the jurisdictional issue, and I think there, Jim, there was a very strong argument that even though Ken Starr wasn't looking for tax evasion charges, in the course of finding out whether or not Webster Hubbell received so-called hush money, he legitimately stumbled on an offense that was directly involved with Webster Hubbell. So I think there's going to be problems in the court of appeals on that. They may very well reverse on that side of the decision.
JIM LEHRER: On the jurisdictional side.
HENRY HUDSON: The jurisdictional side.
JIM LEHRER: Now, explain what that means.
The jurisdictional side of the decision.
HENRY HUDSON: Here's how that could be affected. Jim, with respect to the immunity issue, only Webster Hubbell himself has so-called standing. In other words, he's the only one whose right was violated. So if the court of appeals reverses and sends it back on the jurisdictional issue. That'll mean it will revive the indictment with respect to Mrs. Hubbell and the two accountants but Webster Hubbell.
JIM LEHRER: Okay. But the jurisdiction thing, the judge made the point in his opinion. Mr. Yannett, how would you go at the jurisdiction question? I'll let you explain that.
BRUCE YANNETT: Okay. The independent counsel is not a normal prosecutor. The independent counsel exists to investigate allegations of criminal wrongdoing by executive branch officials, and it is a limited jurisdiction office, and what the court said here was that Mr. Starr originally had jurisdiction to investigate the Whitewater matter. And under the independent counsel law, along with that authority, comes the authority to investigate any obstruction of his investigation, any acts of obstruction of justice, of his investigation. And what the court said was that Mr. Starr went too far, because the tax case that he brought against Mr. Hubbell had nothing to do either with the Whitewater matter, which was the original jurisdiction grant, or with the obstruction of justice that he was supposedly investigating, so it was one step removed from any authority he had. And what the court said was that the three judge special court which authorized the independent counsel did not have the authority to allow him to investigate these tax charges, because that could only come from the attorney general, like Ken Starr did in the Monica Lewinsky situation, where when he stumbled upon the Monica Lewinsky situation, he went to the attorney general, and the attorney general then authorized it, which makes lawful the Monica Lewinsky investigation.
JIM LEHRER: So you would agree with Judge Robertson and disagree with Henry Hudson that Kenneth Starr did the wrong thing, right?
BRUCE YANNETT: I think that's right, and I think that's right, and I think the Lewinsky situation shows that Ken Starr knows the right way to do it. When he stumbled upon this tax investigation, as Henry just pointed out, in the course of investigating the obstruction, what he should have done is at that point then gone to the attorney general and said I've come across evidence of a tax violation, either authorize me to pursue it, or you, the Department of Justice, should pursue it.
HENRY HUDSON: But, Jim, what Ken Starr would say to that, is that the money that Webster Hubbell received on which he should have paid federal tax, was a part of kind of a conspiracy among people to pay him off so he would not cooperate. To him it was an integral part of an overall conspiracy that involved obstruction of his investigation. It's on the margin, Jim, but, nonetheless, it's sufficiently well grounded that there's a rational argument that was part of his mandate.
BRUCE YANNETT: But, Jim, the important point, I think, there is that at no time has Ken Starr made that public allegation. Nowhere in the Hubbell indictment does it charge Mr. Hubbell or any of the other individuals with obstruction of justice, and at no time has he brought such an indictment against anyone as to this conduct, so it may have been his original theory in investigating it, but he certainly hasn't tied it to any obstruction.
JIM LEHRER: What about the point that's been made, Mr. Hudson, that what this all was about was an attempt to punish Hubbell for not cooperating with Kenneth Starr in this other matter?
HENRY HUDSON: Well, Jim, I'd be less than candid with you if I didn't concede that obviously Ken Starr's motive here was to try to get Webster Hubbell's cooperation. He believes he's a treasure trove of information on President Clinton.
JIM LEHRER: Thus far he hasn't said what Ken Starr wants him to say.
HENRY HUDSON: But you know, whether it's Webster Hubbell or Henry Hudson that evades $800,000 in taxable income, there was a factual basis here. He should have been charged. I think maybe the motive was to get his cooperation, but there was a factual basis for what he did and it was proper, Jim.
JIM LEHRER: Based on your experience, Mr. Hudson, is this a legitimate way to go about a prosecution?
Criminal prosecution: a "tough business".
HENRY HUDSON: Jim, there are many times during the course of prosecuting cases where you're forced to use other criminal charges to get cooperation. You know, people who have never been involved in criminal prosecution don't understand what a tough business this is. You have to understand the White House in large measure and Webster Hubbell have set the rules of engagement. This is not the typical case where you have full cooperation. They have been resistant at every move and, therefore, these kind of hardball tactics have been necessary to get to the truth.
JIM LEHRER: Hardball tactics necessary, Mr. Yannett?
BRUCE YANNETT: Well, I would agree with Henry up to a point. Certainly in some cases hardball tactics are appropriate. But it seems to me that the Starr office at every step, at every turn opts for the hardest tactic and the most aggressive approach available. I'm not saying that they act illegally or cross the line necessarily, but they have treated this from the beginning as an extremely aggressive prosecution, and, you know, Henry as a former United States attorney was an aggressive prosecutor, but there even have been times along the way I know where Henry has raised questions and been skeptical about some of the steps the Starr office has taken.
HENRY HUDSON: Well, I don't dispute that whatsoever. I mean, I don't agree with everything that Mr. Starr has done, but you have to remember the White House has not been forthcoming. They have used every means possible to resist and Starr has had to react accordingly. That's why you have the aggressive approach here, Jim.
JIM LEHRER: Mr. Yannett, back to the immunity question, there are two parts to this, and the immunity question which you all seem to agree on, but what about Judge Robertson's point? It wasn't in his written statement; it was in open court last week, where he said the use-the way Kenneth Starr went about this was scary. Would you agree with the use of that word?
BRUCE YANNETT: I think what Judge Robertson was getting at, Jim, there was that what the Starr office had done was served a grand jury subpoena on Mr. Hubbell that essentially asked for all of his financial records for a three-year period and then in the course of looking at those, after having given him immunity for getting those records, then stumbled upon this thing about which they had no knowledge before, and turned around and used it against them, in violation of the immunity order. And I think what Judge Robertson was referring to there was that if you allow a prosecutor to serve a broad-based fishing expedition, as he called it, and using an immunity grant, and then turn it around and use whatever he finds against you, that there are no limits on what a prosecutor can do. And that's the scary element I think he was referring to.
JIM LEHRER: Do you agree with that?
BRUCE YANNETT: I do. Actually I do, because you are, in effect, saying to someone you have no choice, you have to give me these records, because I've given you immunity, and then saying but I can use whatever is in them against you, and so you are forcing a person, in effect, to testify against himself in violation of the Constitution.
JIM LEHRER: Scary, Mr. Hudson?
HENRY HUDSON: Well, in the interest of intellectual honesty I will say I disagree with Ken Starr's argument on this, but here is the way Ken Starr would explain it. He says that there are two types of immunity here. One is testimony immunity, and the other is immunity from production of documents. He says he gave Webster Hubbell immunity with respect to testimony and derivative use of that but not immunity with respect to the documents. I've never heard of such a division, but that's Mr. Starr's argument.
JIM LEHRER: Is he going to win that one, do you think?
HENRY HUDSON: I don't think so.
JIM LEHRER: Is he going to win this whole thing when it goes to the appeals court?
Chances for a reversal of immunity?
HENRY HUDSON: I don't think that Starr will get a reversal on the immunity issue. I think that it's well grounded, well reasoned opinion; however, again, I believe on the jurisdictional issue, you're going to find that he's going to reverse Judge Robertson, it's going to come back, and Mrs. Hubbell and the two accountants are probably going to have to go to trial on these charges.
JIM LEHRER: Mr. Yannett, a prediction, please, sir.
BRUCE YANNETT: I certainly agree with Mr. Hudson that there won't be a reversal as to the immunity. I think the jurisdictional argument is closer, although I think it's a well reasoned opinion. It's important to point out that even if there is a reversal on the jurisdiction and the other three people go to trial, they aren't people who-even Mr. Starr, I think would allege-have any knowledge as to Mr. Clinton, so that phase of the case will essentially be over.
JIM LEHRER: Okay. Gentlemen, thank you both very much.
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