32
Opinion of the Court
indictment relying, in part, on the ground that the Independent Counsel's use of the subpoenaed documents violated § 6002 because all of the evidence he would offer against respondent at trial derived either directly or indirectly from the testimonial aspects of respondent's immunized act of producing those documents.6 11 F. Supp. 2d 25, 33-37 (DC 1998). Noting that the Independent Counsel had admitted that he was not investigating tax-related issues when he issued the subpoena, and that he had " 'learned about the unreported income and other crimes from studying the records' contents,' " the District Court characterized the subpoena as "the quintessential fishing expedition." Id., at 37.
The Court of Appeals vacated the judgment and remanded for further proceedings. 167 F. 3d 552 (CADC 1999). The majority concluded that the District Court had incorrectly relied on the fact that the Independent Counsel did not have prior knowledge of the contents of the subpoenaed documents. The question the District Court should have addressed was the extent of the Government's independent knowledge of the documents' existence and authenticity, and of respondent's possession or control of them. It explained:
"On remand, the district court should hold a hearing in which it seeks to establish the extent and detail of the [G]overnment's knowledge of Hubbell's financial affairs (or of the paperwork documenting it) on the day the subpoena issued. It is only then that the court will be in a position to assess the testimonial value of Hubbell's response to the subpoena. Should the Independent Counsel prove capable of demonstrating with reasonable
by respondent would not, in any event, affect the charges against those other defendants.
6 As an independent basis for dismissal, the District Court also concluded that the Independent Counsel had exceeded his jurisdiction under the Ethics in Government Act of 1978, as amended by the Independent Counsel Reauthorization Act of 1994, 28 U. S. C. §§ 591-599. That holding was reversed by the Court of Appeals and is not at issue here.
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