The dismissal of federal grand jury indictments before trial is rare - even on Fifth Amendment grounds - but Webster L. Hubbell benefited yesterday from the key exception the Supreme Court allows.
The high court has put a heavy burden of proof on prosecutors who force a witness to testify and then charge him with a crime.
Such prosecutors must prove they didn't use evidence obtained under "use immunity," not even as leads to other evidence.
U.S. District Judge James Robertson's decision in the Hubbell case may give the justices an opportunity to decide whether papers surrendered by a witness have the same protection as testimony.
Independent Counsel Kenneth W. Starr said last night he will argue in his appeal that "production immunity" for documents is different from "use immunity," and that Judge Robertson departed from a circuit court precedent as well as from two rulings in U.S. District Court for the District of Columbia.
Mr. Hubbell delivered 13,120 pages of documents under subpoena. Associate Independent Counsel Stephen Binhak argued at a hearing last Friday that immunity didn't cover records delivered under subpoena, so long as the grand jurors weren't told their source.
"That's real scary," Judge Robertson, who was appointed to the bench by President Clinton, replied. Yesterday, he put his reaction in more legalistic terms, calling the subpoena for documents "the quintessential fishing expedition" that turned Mr. Hubbell "into the primary informant against himself" despite assurances his testimony would not be used against him.
Defense lawyers hailed the decision. "They tried to wiggle around the rule on `use immunity' and got caught using the results of the deal they made," said New York defense attorney Robert Fogelnest, a former president of the Association of Criminal Defense Lawyers.
"Dismissal before trial on this basis is very rare, but generally the government acts with more integrity and doesn't try this stuff," said Mr. Fogelnest, who is not involved in the Whitewater case, but has criticized tactics of Mr. Starr.
Former White House aide Oliver North benefited from a court decision that "use immunity" given to him by Congress was abused by prosecutors, but that case …