Justices decide to rule on Starr-related question; Case is based on use of Hubbell's tax records to get indictment of him


WASHINGTON -- The fading Whitewater investigation gained at least a few months of life yesterday as the Supreme Court agreed to rule on a fresh constitutional issue raised by independent counsel Kenneth W. Starr.

The court, in a brief order, said it would rule on a question stirred up by the years-long courthouse feuding between Starr and Webster L. Hubbell, a former top-ranking Justice Department official in the Clinton administration.

The court's willingness to hear the case was somewhat of a surprise, because there will be little or no practical effect on Starr or Hubbell, no matter what the final decision is.

Plea deal for Hubbell

Hubbell and Starr have made a deal, under which Hubbell pleaded guilty to tax evasion and was sentenced to one year on probation.

If the court ultimately rules in Starr's favor, the only result will be that the Hubbell plea of guilty will remain intact.

If Starr loses, that conviction is wiped out, but the probation sentence would not change.

A separate guilty plea for concealing facts from the government will remain intact.

The Hubbell case is the last criminal case Starr is known to be pursuing. There have been indications that Starr planned to resign as early as this month, leaving any final details of shutting down his five-year investigation to his staff.

When the justices reach a final decision in the Hubbell case, probably in seven or eight months, they will be deciding the important issue of how much protection the Constitution gives to documents that prosecutors obtain by promising the owner legal immunity.

Hubbell resisted handing over his personal financial records to Starr, claiming his Fifth Amendment right against incriminating himself.

But after being given a grant of immunity, he supplied 13,120 pages of papers.

Starr then used some of the contents to help secure a grand jury indictment of Hubbell on the tax evasion charge.

A federal appeals court ruled in January that Starr could go forward with the tax evasion case only if he could prove that he knew of Hubbell's financial records before forcing him to produce them under immunity.

By producing the papers, the court said, Hubbell might have incriminated himself by admitting that he had them.

Privacy on buses, trains

Besides taking on that dispute, the court agreed yesterday to decide a new case that tests the privacy rights of people who ride on buses or trains.

An Arkansas man contended in an appeal that a federal Border Patrol agent in Texas intruded on his privacy by picking his luggage off an overhead rack, then feeling it to see whether it contained anything suspicious, such as drugs.

The bag turned out to contain a "brick" of methamphetamine, which was used to convict the Arkansan of plotting to distribute it.

Lower courts are divided on whether passengers give up their privacy when they put their bags in a "common area," such as an overhead bin.

In another case, the court refused -- as it has several times before -- to reconsider its 1939 ruling that the Constitution's Second Amendment does not give people a right to possess a gun.

Right to bear arms

The issue was raised by two Louisiana hunters who are barred by federal law from possessing guns because they have been convicted of federal crimes.

Their appeal argued that the case "affords an excellent and long awaited opportunity to clarify the nature and scope of individual citizens' rights" under the Second Amendment.

That amendment guarantees a "right to keep and bear arms."

But the court ruled in 1939 that the guarantee applies only to those who need guns to serve in a state militia, like the National Guard.

The court also refused to hear an appeal by the Fraternal Order of Police, in a separate case, seeking to raise the Second Amendment argument on behalf of police officers who have been denied access to guns under a federal law that forbids those convicted of domestic violence to possess guns.

In other orders yesterday, the court declined to hear a plea by a Georgia death row inmate who is seeking a new constitutional right to a court-appointed lawyer in state court.

And it agreed to decide whether state and local government workers can be forced to use accumulated compensatory time when they would rather save it.

Pub Date: 10/13/99

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