Justia Federal District Court Opinions

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

Separate opinion dissenting from Part I filed by Circuit Judge TATEL.

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 necessarily 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. § 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.

On August 5, 1994 this court's Special Division for the Purpose of Appointing Independent Counsels ("Special Division"), upon request from the Attorney General, appointed Kenneth W. Starr as Independent Counsel. It gave Independent 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 Clinton's, or Mrs. Hillary Rodham Clinton's relationships with Madison Guaranty Savings & Loan Association, Whitewater Development Corporation, or Capital Management Services, Inc.

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. § 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 prosecute the subject matter with respect to which the Attorney 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 prosecute 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, obstruction of justice, destruction of evidence, and intimidation of witnesses.

These grants of authority were under 28 U.S.C. § 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 prosecutorial 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 § 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. § 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 practices 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 promised to cooperate "by providing full, complete, accurate and truthful information" to the Independent Counsel about Madison, Whitewater, and Capital Management (hereinafter collectively "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 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 § 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, regarding 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. Hubbell has received from various individuals and entities since January 1, 1994.

A federal grand jury indicted Hubbell and the other defendants 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.

* * *

The threshold issue before us is the effect, if any, of the Special Division's January 6, 1998 referral order ("the referral"). 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 of the referral.

Referrals from the Special Division are authorized by 28 U.S.C. § 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 Attorney 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, 108 S.Ct. 2597, 101 L.Ed.2d 569 (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, 108 S.Ct. 2597.

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, 108 S.Ct. 2597. The Independent Counsel argues for unreviewability 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 § 594(e). In United States v. Tucker, 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 Government 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 § 594(e) power did not empower the Division to expand the original grant of jurisdiction. 487 U.S. at 680 n. 18, 108 S.Ct. 2597. If the constitutional balance between the branches requires this constricted reading of § 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 independent counsel provisions--is the one exercising the § 594(e) power. In Tucker, moreover, the Eighth Circuit also relied upon particular legislative history indicating that Congress intended the Attorney General's § 594(e) referrals to be unreviewable, see 78 F.3d at 1317-18, history not paralleled as to § 594(e) referrals by the Special Division. We therefore find nothing that overcomes the general presumption of reviewability.

But the independent counsel alternatively asks for deference to the Special Division'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 referrals 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 performed 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.

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). Defendants 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 frequently find deference in such safeguard-deprived circumstances. See, e.g., Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (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); National 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 Assistance Manual).

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 Congress likely intended no deference for the Special Division's interpretations of the initial § 593 grant (which is all that § 594(e) referrals are). See Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 158, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (Congress 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 Division as its own action. See 28 U.S.C. § 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 that the Special Division's interpretations receive deference, see Martin, 499 U.S. at 151, 111 S.Ct. 1171 ("[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, 108 S.Ct. 2597. This sets out the constitutional boundary for the Special Division's initial action. Even if we assume its extension to the Division's later § 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 Administrative 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 moribund);³ see also Oklahoma Natural Gas Co. v. FERC, 28 F.3d 1281, 1283-84 (D.C.Cir.1994) (Chevron deference applicable 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 original grant, it 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, 108 S.Ct. 2597. 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 Attorney General and the Special Division, presents further deference 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 determination 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 jurisdiction--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 reviewable). Indeed, as Morrison's concern about the Special Division's power is far less applicable to a § 594(e) reference by the Attorney General (who would be voluntarily ceding her own power), her power here may not be limited to interpreting the original grant; any review of her referral would then be in an entirely different context. As either entity may act under § 594(e) only at the initiative of the Independent Counsel,⁴ the possibility of conflicting interpretations is one 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 discretion 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 § 594(e)'s provision for referral by the Special Division 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, 103 S.Ct. 2317, 76 L.Ed.2d 527 (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, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945), while a search warrant is valid if the magistrate had a "substantial basis" for his finding of conformity to the applicable standard (probable cause). Gates, 462 U.S. at 238, 103 S.Ct. 2317. Such formulations do not necessarily conflict: each appears to assume a paradigm case rather different from the Special Division'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 as 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 decisions, 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 interpretation of statutes), so deference may enable the Special Division to do so, as the thousands of magistrates and state judges who issue warrants obviously cannot.

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, 71 S.Ct. 456, 95 L.Ed. 456 (1951). That is to say, we believe that a § 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. § 593(b)(3) (emphasis added). As we shall see, there is an ambiguity in the definition of that core "subject matter," but, under the sentence as a whole, the Independent Counsel may prosecute anything "related to" it.

The statute continues:

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 respect to which the Attorney General's request was made, including perjury, obstruction of justice, destruction 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 Appointment of Independent Counsel (1994) (emphasis added). It appears unusual in defining the original "core" as criminal activity "relating to" the narrowly conceived subject--Whitewater.⁶ One could argue that the "related to" phrases compound: 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 crimes "relating to" Whitewater).

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 meaningless.

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 government and campaign officials." United States v. Wilson, 26 F.3d 142, 148 (D.C.Cir.1994) (emphasis added). Discussing the "related to" language of § 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 unrelated.

More concretely, the jurisdiction to look into matters "related to" the core areas of initial inquiry must allow the Independent Counsel enough leeway to investigate and prosecute 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-a-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 § 593(b)(3): "perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses." The latter, argues DOJ, involve "conduct 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 Hubbell's 1994 tax return. See Dissent at 593. 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 594, 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 expected benefits of silence and thereby increase the chances that the underlying truth--if in fact something was hidden--would remain buried.

Indeed, the history of "aris[ing] out of" indicates a rather liberal view as to the prosecution of downstream matters. 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 obtained 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 narrower 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 prosecutor 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 complete exoneration (i.e., better than acquittal, which is consistent 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 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 defendants' 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. § 1001 (prohibiting false statements) to pursue public corruption crimes when prosecution for the underlying offense "is not practicable." 9A DOJ Manual at 9-1938.123 (1988); see also United States v. Blackley, 167 F.3d 543, 548 (D.C.Cir.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 Manual 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 § 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. § 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 official "as being engaged in organized criminal activities; notorious or powerful with respect to local criminal activities," etc. Id. § 4566.1(2)(a).

That does not mean, of course, that the Independent Counsel 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 596. The dissent rests this complaint on § 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. § 594(f)(1). It suggests that the court wrongly "assume[s]" such inconsistency. Dissent at 596. But defendants have never raised a claim under § 594(f)(1). In the absence of any effort to assert the section (and thus any opportunity for the Independent Counsel 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 situated, 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 standards suggested by the defense. If he were, even his investigations 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 other prosecutor, would be unable to use a prosecution of an easily proved derivative offense as a substitute for prosecution of another, hard-to-prove offense. For the Independent Counsel, a reasonable belief that the linking crime has been committed should suffice.

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 Congress'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 Independent Counsel from performing his duty in a manner reasonably approximating that of an ordinary prosecutor.

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 Independent Counsel (the "Independent Counsel" or the "government"). He delivered the specified documents only after the Independent Counsel had obtained a grant of use-immunity pursuant to 18 U.S.C. §§ 6002, 6003. Within the personal and financial records he produced, the government found evidence which provided the keystone for a ten-count indictment. 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, 92 S.Ct. 1653, 32 L.Ed.2d 212 (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 Independent 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 Independent 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. §§ 6002, 6003, as well as the Fifth Amendment's privilege against self-incrimination with which it is coextensive. Because the district court utilized an improper legal standard in assessing the scope of Hubbell's Fifth Amendment privilege, we vacate its decision and remand for it to conduct a hearing as to the extent of the Independent Counsel's knowledge of the records maintained by Hubbell at the time the subpoena issued.

In the course of its ongoing investigation into possible criminal activity related to Madison Guaranty Savings & Loan Association and the Whitewater Development Corporation, the Independent Counsel learned that Webster Hubbell had received payments from entities "associated with" President 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 Independent 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 cooperate 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 finances, covering the period from January 1, 1993 to the date of the subpoena.¹²

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. §§ 6002, 6003--directing Hubbell to respond and granting immunity "to the extent allowed by law." In re Grand Jury Proceedings, No. GJ-96-3 (E.D.Ark. Nov. 14, 1996) (order compelling production of documents). After receiving immunity, Hubbell turned over some 13,120 pages of documents and records. The Independent Counsel then led Hubbell through 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 whether Hubbell might have obstructed its Whitewater investigation 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 alleging that Webster Hubbell, Suzanna Hubbell, Michael Schaufele 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 "Hubbells").¹⁵ The indictment further 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. § 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. § 7201, and committed both mail and wire fraud, in violation of 18 U.S.C. §§ 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. § 7206(2).

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 approximately $74,000, and failed to make any payments towards 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 Retirement Account ("IRA") without paying the withholding taxes.¹⁷ In December of 1994 and January of 1995, the Hubbells executed three trust agreements--the Webster Hubbell Legal 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 benefit of Webb and Suzy Hubbell," at Pulaski County Bank in Little Rock, and then used the account to make funds available for the Hubbells' personal spending. In March of 1997, Charles Owen prepared Articles of Organization for a company entitled the Bridgeport Group, LLC, in which Webster and Suzanna Hubbell each owned a forty-nine percent interest and the Hubbell Children's Education Trust the remaining 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 Independent 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, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) that "a grant of immunity must afford protection 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 examining the extent of Hubbell's Fifth Amendment privilege. Drawing from the framework sketched in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), and reiterated in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (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 existence of documents which added to the "sum total" of the government's information against him.¹⁹ Neither the existence of the documents nor their contents was a "foregone conclusion," Fisher, 425 U.S. at 411, 96 S.Ct. 1569, because the Independent Counsel had no source of knowledge independent of Webster 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 Amendment and the order of immunity. Accordingly, it dismissed Hubbell's indictment.

1. Hubbell's Privilege Against Self-Incrimination

a. The Basic Fifth Amendment Framework for Compelled 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 compulsion; ii) of testimony; iii) that incriminates. See Fisher, 425 U.S. at 409, 96 S.Ct. 1569 ("the privilege protects a person only against being incriminated by his own compelled testimonial communications").

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, 96 S.Ct. 1569; Doe I, 465 U.S. at 612 n. 10, 104 S.Ct. 1237 ("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 documents are not protected, the Court has acknowledged that there are testimonial and potentially incriminating communications 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, 96 S.Ct. 1569 ("The act of producing evidence in response to a subpoena nevertheless has communicative aspects 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 compulsion. See id. at 409, 96 S.Ct. 1569.

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 authentic;²⁰ and iv) the responding party believes that the documents produced are those described in the subpoena. See Fisher, 425 U.S. at 410, 96 S.Ct. 1569; Doe I, 465 U.S. at 614 n. 13, 104 S.Ct. 1237.²¹ Nevertheless, not every act that communicates one or more of these statements rises to the level of a protected communication 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, 96 S.Ct. 1569 (quoting In re Harris, 221 U.S. 274, 279, 31 S.Ct. 557, 55 L.Ed. 732 (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, 96 S.Ct. 1569 ("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 communicative 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 papers 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, 96 S.Ct. 1569--the Court held that the Fifth Amendment's protections were not implicated. See id.

Doe I provides an illustrative counterpoint, as the government 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 subpoenas 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 respondent'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, 104 S.Ct. 1237. 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 appellee to become, in effect, the primary informant against himself." Id. at 613-14 n. 12, 104 S.Ct. 1237. 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, 104 S.Ct. 1237, the Supreme Court upheld the lower court's factual determination that complying with the subpoena would involve testimonial self-incrimination. See id. at 614, 104 S.Ct. 1237.

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, 104 S.Ct. 1237, before it will invoke the Fifth Amendment's protections necessarily 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 undetermined. 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 section 6002. As Kastigar teaches, that inquiry leads us straight back to the scope of the Fifth Amendment privilege. See 406 U.S. at 453, 92 S.Ct. 1653 (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, 96 S.Ct. 1569; Doe I, 465 U.S. at 613, 104 S.Ct. 1237, we discuss each in turn.

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, the documents' existence was what Fisher described as a "foregone conclusion." Accordingly, the actual act of production 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 protection. 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 information possessed by the government before it issued the relevant 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, financial, and business records like those subpoenaed here. Since people generally possess such records, and since the government 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 Bertrand Russell teach, can only be a postiori, not a priori. See David Hume, Enquiries Concerning the Human Understanding and Concerning the Principles of Morals § 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 described in the subpoena. See Fisher, 425 U.S. at 430 n. 9, 96 S.Ct. 1569 (Brennan, J., concurring). The actual production of such records accordingly added little, independent of the documents' 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, financial and business records, the Court held that the act of production would have testimonial value meriting Fifth Amendment protection.²⁴ While the Court left open the 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 testimonial value of the act of production. See Doe I, 465 U.S. at 614 n. 13, 104 S.Ct. 1237.

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 category, the Eighth Circuit did not hold--as the Independent 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 examine monthly and year-end statements relating to Dr. Rue's dentistry practice, forms containing individual patient treatment 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 knowledge 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 authentication by other witnesses supported the conclusion that any testimony rendered through production was a foregone conclusion. See id. at 1493-94.

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 potential incrimination, and is immediately preceded by the statement that "it is difficult to contemplate how mere existence, 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 contention that Dr. Fishman had implicitly admitted the existence 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 documents 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 accompanying 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 argument from revenue agent's experience as to whether physician likely maintains records sought via subpoena).

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 Congress, 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 together, 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 Counsel 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 prosecution, 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 Independent 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, 68 S.Ct. 401, 92 L.Ed. 476 (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 inference").

i. The Legal Standard

To formulate an appropriate legal standard as to the degree of prior knowledge needed to render the existence, possession or authenticity of documents a foregone conclusion, it is necessary to return to first principles. See Doe v. United States, 487 U.S. 201, 209, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988) (describing Fisher and Doe I as applying "basic Fifth Amendment principles" articulated 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, 6 S.Ct. 524, 29 L.Ed. 746 (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, 96 S.Ct. 1569 ("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, 31 S.Ct. 2, 54 L.Ed. 1021 (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 material." Id. at 252-53, 31 S.Ct. 2. Justice Holmes thereby drew a fundamental distinction between government action that extorts communication--such action falls within the umbrella of protection 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 Amendment'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, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (privilege against self-incrimination does not extend to a compelled blood sample), Gilbert v. California, 388 U.S. 263, 265-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (privilege does not extend to compelled handwriting exemplar), United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (privilege does not extend to compelled voice exemplar), and United States v. Dionisio, 410 U.S. 1, 5-6, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (privilege does not 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 testimony, and compulsion which merely requires him to produce his body for inspection. While in each instance the government draws evidentiary inferences as a result of the compulsion, the Fifth Amendment only protects against those inferences which derive from compelled communication. See Pennsylvania v. Muniz, 496 U.S. 582, 593, 110 S.Ct. 2638, 110 L.Ed.2d 528 (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, 108 S.Ct. 2341 (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, 86 S.Ct. 1826 ("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, 93 S.Ct. 764 ("It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination.").

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 attempts to dissect the testimonial and non-testimonial elements of providing blood, voice and handwriting samples. He argues that in giving blood, a person implicitly says, "This is my blood", Dissent at 598; in providing a handwriting sample, the accused admits his ability to write and that the exemplar is his. See id. at 4, 93 S.Ct. 764. 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, 93 S.Ct. 764. 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 perpetrator. See 218 U.S. at 253, 31 S.Ct. 2. 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 characteristic 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 required 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, 86 S.Ct. 1826. 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 accused's testimony, the Fifth Amendment does not apply. See Dissent at 597-599, 602. 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 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, 86 S.Ct. 1826 (distinguishing acts communicative in nature from the noncommunicative); Doe II, 487 U.S. at 211 n. 10, 108 S.Ct. 2341 (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 incriminating 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, 86 S.Ct. 1826 (emphasis added).

The rationale underlying the act of production trilogy--Fisher, Doe I, and Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988)²⁸--with its emphasis on compelled truthtelling, emerges directly out of this focus upon whether the state operates upon a reluctant witness' mental faculties to compel testimony. See Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678 (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, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (same); Curcio v. United States, 354 U.S. 118, 128, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (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 precisely because the subpoenaed party is forced to undertake some communicative act in answering. See Fisher, 425 U.S. at 410, 96 S.Ct. 1569; Doe I, 465 U.S. at 612, 104 S.Ct. 1237. 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, 108 S.Ct. 2341 (internal citations omitted).²⁹ In terms of the dichotomy articulated in Holt and 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 doctrine. 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, 110 S.Ct. 2638 ("the cases upholding compelled writing and voice exemplars did not involve situations 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 repeated statement that the question of whether tacit averments are sufficiently testimonial as to merit the Fifth Amendment's protection depends "on the facts and circumstances of particular cases or classes thereof."³¹ Fisher, 425 U.S. at 410, 96 S.Ct. 1569; Doe I, 465 U.S. at 613, 104 S.Ct. 1237; Braswell, 487 U.S. at 103, 108 S.Ct. 2284. 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

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 Amendment's protections.

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 Schlansky'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 found that the existence and 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 maintained 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 accountant'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 not implicate Fifth Amendment).

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 Proceedings 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 subpoena 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 broader, more general, and subjective the language of the subpoena, 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 government's prior knowledge is minimal, the act of production will likely communicate either the existence, possession or authenticity 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 conclusion that the communicative aspects of the act of production are a "foregone conclusion" under Fisher and Doe I. Rehearsing an argument discussed above, the Independent Counsel contends that government knowledge of the existence 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 conclusion 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 knowledge 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, 109 S.Ct. 2333, 105 L.Ed.2d 91 (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 upwards or downwards (through varying levels of generality) in order to embrace or reject concrete instances. See generally Ludwig Wittgenstein, Philosophical Investigations (G.E.M. Anscombe trans., 3d ed.1968) at §§ 137-242 (general concepts do not dictate their concrete applications, but rather are defined through them). As Doe I well illustrates, the government 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 Independent 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 contention 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 capacity. The Eighth 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 government knowledge. See Butcher v. Bailey, 753 F.2d 465, 470 (6th Cir.1985) (inviting the district court to break its assessment 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 themselves to categorical answers" and "may instead depend on the facts and circumstances of particular cases or classes thereof." Fisher, 425 U.S. at 410, 96 S.Ct. 1569; Doe I, 465 U.S. at 613.

Recognizing that the inquiry will always be highly contextual 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 conclusion.³⁴ See In re Grand Jury Subpoena Duces Tecum, 1 F.3d 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,