Kenneth Starr is long gone from Washington, but the man who permanently discredited the idea of special prosecutors is still losing cases.
Last Monday, he suffered a stinging rebuke from the Supreme Court, which by an 8-1 vote threw out a plea agreement between the independent counsel and former Clinton associate attorney general Webster Hubbell.
The reason given by the court won’t surprise anyone: Starr overreached his legal authority to get the conviction.
Hubbell served 17 months in prison under an earlier plea bargain. Under that deal, he had a grant of immunity that obligated him to cooperate in Starr’s investigation of the Whitewater affair. But Starr thought Hubbell was holding back and suspected he had to have been paid to keep quiet.
So he ordered him to turn over 13,120 pages of records to verify that Hubbell was indeed telling everything he knew. Out of that mountain of paper, Starr apparently didn’t find proof of his hush money theory–but he did find what he saw as evidence of tax evasion, and proceeded to indict Hubbell yet again.
The problem is that Starr would never have had the evidence except for the grant of immunity, and grants of immunity are not supposed to be used to gather evidence against the person to whom they are given. But that is exactly what happened here.
As Justice John Paul Stevens wrote for the court, “The documents did not magically appear in the prosecutor’s office like manna from heaven. They arrived there only after [Hubbell] . . . took the mental and physical steps to provide the prosecutor with an accurate inventory of the many sources of potentially incriminating sources of evidence sought by the subpoena.”
Quoting the federal district judge who had earlier dismissed the case, the court said the subpoena was nothing but an evidentiary “fishing expedition.” Stevens omitted something else said by that judge, which is that what Starr did was “really scary.”
So Hubbell, having spent years fighting this attack by the independent counsel, gets one conviction scotched. And the nation gets another reminder of why it doesn’t miss Ken Starr.
