dissenting from Part I:
This court today concludes that the indictment of Webster Hubbell for failing to pay taxes on income earned in Washington, D.C., in 1994 “arises out of’ or “relates to” the Independent Counsel’s investigation of various Arkansas land transactions in the mid-1980s known as Whitewater. Because this result expands independent counsel authority at the expense of the Executive Branch, I believe it violates the constitutional principle of separation of powers. By deferring to the Special Division and by adopting virtually limitless theories of “relatedness,” the court fails to police the boundaries that Morrison v. Olson deemed essential to the constitutionality of the independent counsel statute. See 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). Mindful of these boundaries, which guarantee political accountability for the prosecutorial function, and of “the duty of federal courts to construe a statute in order to save it from constitutional infirmities,” id. at 682, 108 S.Ct. 2597, I would find that the tax indictment is not “demonstrably related to the factual circumstances that gave rise to the Attorney General’s ... request for the appointment of the independent counsel,” id. at 679, 108 S.Ct. 2597. I would therefore affirm the district court’s order quashing the indictment.
I
Vesting the executive power in the President of the United States, the Constitution directs that “he shall take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. To aid in this task, Congress specifically delegated to the Attorney General and her subordinates in the Department of Justice the power to “conduct any kind of legal proceeding, civil or criminal,” 28 U.S.C. § 515(a) (1994); see id. § 516, including the prosecution of tax crimes, see 28 C.F.R. § 0.70 (1998).
The Ethics in Government Act of 1978 carved a narrow exception to the Attorney General’s power to enforce federal criminal law. In the wake of the “extraordinary sequence of events” of the Watergate scandal— in particular, the firing of special prosecutor Archibald Cox — Congress saw the need for “the appointment of an independent temporary special prosecutor for certain limited cases where the Department of Justice may have a conflict or interest with respect to a particular investigation.” S.Rep. No. 95-170, at 6, 34 (1977), reprinted in 1978 U.S.C.C.A.N. 4216, 4222, 4250. Aware of the constitutional implications of creating an independent prosecutorial function outside the Executive Branch, Congress adopted an elaborate array of procedures controlling the appointment, powers, and jurisdiction of independent counsel. See 28 U.S.C. §§ 592-596. Independent counsel may be removed by the Attorney General for “good cause,” may perform only certain limited duties, and may act only within the scope of prosecutorial jurisdiction ceded by the Attorney General. See S.Rep. No. 95-170, at 56, 1978 U.S.C.C.A.N. at 4272 (“The prosecutorial jurisdiction of the special prosecutor is one of the most important devices for the control ... and the accountability of such a special prosecutor.”). Absent expansion by the Attorney General under 28 U.S.C. § 593(c), the jurisdiction of an independent counsel is limited to matters related to the Attorney General’s original request for appointment of an *588independent counsel under 28 U.S.C. § 592(d).
In Morrison, the Supreme Court found these constraints essential to the statute’s constitutionality. Without them, the Court could not have characterized the independent counsel as an “inferior officer” under the Appointments Clause of the Constitution. See 487 U.S. at 670-77, 108 S.Ct. 2597. Once an independent counsel investigates or prosecutes matters beyond the jurisdiction ceded by the Attorney General, the independent counsel sheds his “inferior” status and becomes a “principal officer” requiring Presidential appointment and Senate confirmation. See Buckley v. Valeo, 424 U.S. 1, 132, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). Although “the power to appoint inferior officers such as independent counsel is not in itself an ‘executive’ function in the constitutional sense,” Morrison, 487 U.S. at 695, 108 S.Ct. 2597, the power to appoint principal officers surely is. See U.S. Const. art. II, § 2, cl. 2. For that reason, the Morrison Court thought it constitutionally important that “the jurisdiction of the independent counsel is defined with reference to the facts submitted by the Attorney General” and that “the Act [28 U.S.C. § 594(f) ] requires that the counsel abide by Justice Department policy unless it is not ‘possible’ to do so.” 487 U.S. at 696, 108 S.Ct. 2597 (emphasis added). These limitations, among others, “give the Executive Branch sufficient control over the independent counsel,” id., and ensure that the Act does not “ ‘impermis-sibly undermine[ ]’ the powers of the Executive Branch,” id. at 695, 108 S.Ct. 2597 (citation omitted). An independent counsel who exceeds the jurisdiction conferred by the Attorney General usurps the President’s constitutional power to maintain control of the inherently “executive” function of law enforcement. See id. at 691, 694, 108 S.Ct. 2597.
Morrison expressed similar constitutional concerns about the role of the Special Division of this court. The statute allows the Special Division to appoint an independent counsel only after the Attorney General makes a preliminary investigation, determines that further investigation is warranted, prescribes a subject matter for investigation and potential prosecution, and “applies” to the Special Division for an appointment. See 28 U.S.C.'§§ 592(c)-(d), 593(b). In defining an independent counsel’s prosecutorial jurisdiction, the Special Division has only one function:
[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. 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. § 593(b)(3). Describing the Special Division’s power to define jurisdiction as “incidental” to its power to appoint, Morrison made clear that the Special Division’s authority is quite limited:
[Congress] may vest the power to define the scope of the office in the [Special Division] as an incident to the appointment of the officer pursuant to the Appointments Clause. That said, we do not think that Congress may give the Division unlimited discretion to determine the independent counsel’s jurisdiction. In order for the Division’s definition of the counsel’s jurisdiction to be truly “incidental” to its power to appoint, the jurisdiction that the court 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 paHicular case.
487 U.S. at 679, 108 S.Ct. 2597 (second emphasis added). To be sure, the statute also provides that the Special Division may, upon a request by an independent counsel, “refer to the independent counsel matters related to the independent counsel’s prosecutorial jurisdiction.” 28 U.S.C. § 594(e). But Morrison left no doubt that referrals may not expand *589the original scope of an independent counsel’s jurisdiction. See 487 U.S. at 680 n. 18, 108 S.Ct. 2597. Consistent with the separation of powers principle, only the Attorney General may expand an independent counsel’s prosecutorial jurisdiction. See 28 U.S.C. § 593(c).
Thus, the Attorney General’s “initial suggestion of jurisdiction,” Majority Opinion (“Maj. Op.”) at 557 — or more precisely, as Morrison put it, “the factual circumstances that gave rise to the Attorney General’s investigation and request for the appointment of the independent counsel,” 487 U.S. at 679, 108 S.Ct. 2597—serves as the ultimate baseline for assessing the legality of any definition of jurisdiction by the Special Division as well as any exercise of authority by an independent counsel. Constitutionally required, this baseline reconciles the principle of separation of powers with the vesting of prosecu-torial authority in an official independent of the Executive Branch. See id.
II
In her June 30, 1994 application to the Special Division, the Attorney General prescribed the subject matter of the Independent Counsel’s jurisdiction as follows:
whether any individuals or entities have committed a violation of any federal criminal law, ... 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.
Application for Appointment of Independent Counsel, In re Madison Guar. Sav. & Loan Ass’n (June 30, 1994). The application also authorized prosecution of any conduct obstructing the investigation of this core subject matter. See id. Exercising its power under 28 U.S.C. § 593(b)(1), the Special Division on August 1,1994 appointed Kenneth W. Starr as independent counsel and granted him prosecutorial jurisdiction over matters set forth in the Attorney General’s application. See Maj. Op. at 554-555 (describing the Special Division’s original grant of jurisdiction). Responding to subsequent requests from the Independent Counsel, the Special Division twice exercised its referral power under 28 U.S.C. § 594(e). See Maj. Op. at 555-556 (describing the September 1, 1994 and January 6,1998 referrals).
The second referral arose from an application in which the Independent Counsel stated:
In the course of its investigation, this Office received information regarding payments to Mr. Hubbell from individuals and entities associated with the Clinton Administration. These payments were made starting in 1994, when Mr. Hubbell was publicly known to be under criminal investigation. This Office initiated a preliminary investigation into whether these payments might be related to Mr. Hubbell’s unwillingness to cooperate fully with the investigation, as his plea agreement obligated him to do. The grand jury has heard evidence related to the payments, including evidence that Mr. Hubbell may have committed fraud and tax crimes in connection with them.
Application for Order of Referral, In re Madison Guar. Sav. & Loan Ass’n (Dec. 31, 1997), at 3-4. In response, the Special Division’s referral authorized investigation and prosecution of crimes, including tax offenses, associated with Hubbell’s income since 1994, as well as other crimes such as obstruction of justice and perjury “related to payments that Mr. Hubbell has received from various individuals and entities” since 1994. Order Granting Application for Order of Referral, In re Madison Guar. Sav. & Loan Ass’n (Spec. Div. D.C.Cir. Jan. 6, 1998). The Independent Counsel then brought a 10-count, 42-page indictment detailing an elaborate tax evasion scheme allegedly undertaken by Hubbell and his wife, along with their lawyer and accountant.
We now face the following question: Under sections 593(b)(3) and 594(e) of the Ethics in Government Act, does this indictment “arise out of’ or “relate[] to” the original scope of the Independent Counsel’s prosecu-torial jurisdiction? To answer this question, we must evaluate the indictment not against the two referrals by the Special Division— those referrals could not have expanded the *590original scope of the Independent Counsel’s jurisdiction, see Morrison, 487 U.S. at 680 n. 18, 108 S.Ct. 2697—but against the Special Division’s original August 6, 1994 grant of authority. Given Morrison’s constitutional limitation on the Special Division’s power to define independent counsel jurisdiction, see id. at 679, 108 S.Ct. 2597, the precise question before us is this: Is the indictment of Hubbell for tax evasion “demonstrably related to the factual circumstances that gave rise to the Attorney General’s investigation and request for the appointment of the independent counsel”?
Before addressing this issue, this court holds that the Special Division’s January 1998 referral is entitled to deference — “substantial” deference, according to Judge Williams; at least “due” deference, according to Judge Wald. Either way, I disagree.
At the outset, I think it important to clarify that, as a procedural matter, we are not directly reviewing the Special Division’s referral. The statute nowhere authorizes appeals from Special Division referrals. Courts of appeals and the Special Division play different institutional roles under the independent counsel statute. They act at different stages of the investigation, and they have different documents before them. Although the Special Division made an implicit determination of “relatedness” in its referral, it did so in the context of a request for investigative and prosecutorial authority. That investigation has now progressed beyond mere allegations and has evolved into an indictment. Our task, like the district court’s before us, is to resolve a specific dispute whose parameters have crystallized: We must decide whether the April 30,1998 indictment, in all its concreteness and particularity, is “related to” the original scope of the Independent Counsel’s prosecutorial jurisdiction. The Special Division did not resolve this question, nor could it.
In support of giving the referral deference, Judge Williams accepts the view that the Special Division “act[ed] quite like [an agency] glossing its own regulation” when it exercised its referral power. Maj. Op. at 557. However, the Special Division possesses none of the characteristics of agencies that entitle their legal judgments to judicial deference. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In making “related to” determinations, the Special Division exercises no special or technical expertise that circuit and district courts lack. The Special Division has no political accountability through either executive or congressional oversight, and its members are neither appointed by the President nor confirmed ■ by the Senate for their role. No provision of law allows for direct judicial review of its decisions. Unlike administrative agencies — and unlike even the U.S. Sentencing Commission, see 28 U.S.C. §§ 991(b), 994-995 — the Special Division exercises no congressionally-delegated policymaking responsibilities. This last fact alone undermines the agency analogy, for “the power authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers.” Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 151, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (emphasis added), quoted in Maj. Op. at 558.
Morrison left no doubt that in both form and function, the Special Division is a court, not an agency. The opinion consistently refers to the Special Division as a “court”: “The court consists of three circuit court judges or justices appointed by the Chief Justice of the United States,” 487 U.S. at 661 n. 3, 108 S.Ct. 2597; “we do not think it impermissible for Congress to vest the power to appoint independent counsel in a specially created federal court,” id. at 676, 108 S.Ct. 2597; “there is no risk of partisan or biased adjudication of claims regarding the independent counsel by that court,” id. at 683, 108 S.Ct. 2597; “once the court has appointed a counsel and defined his or her jurisdiction, it has no power to supervise or control the activities of the counsel,” id. at 695, 108 S.Ct. 2597. Were this language not clear enough, Morrison explicitly held that the Special Division’s functions fall within the range of powers assigned to federal courts by the Appointments Clause, see id. at 673-77, 108 S.Ct. 2597, and by Article III, see id. at 677-85, 108 S.Ct. 2597.
*591Morrison also acknowledged that the Special Division functions in a judicial capacity when exercising its referral power. Observing that “in order to decide whether to refer a matter to the counsel, the court must be able to determine whether the matter falls within the scope of the original grant,” the Supreme Court said that the referral power involves “the power to ‘reinterpret’ or clarify the original grant.” Id. at 685 n. 22, 108 S.Ct. 2597 (emphasis added); see also In re Espy, 80 F.3d 501, 507 (D.C.Cir.1996) (“In referring a related matter, this court is interpreting, but not expanding, the independent counsel’s original prosecutorial jurisdic-tion_”). In other words, the referral function requires the Special Division to decide a legal question — i.e., whether the matters contained in an independent counsel’s request for referral are “related to” the original jurisdictional grant. See id. at 507-09; In re Olson, 818 F.2d 34, 47-48 (D.C.Cir.1987). Answering this question calls on the Special Division — whether explicitly (as in Espy) or implicitly (as in this case) — to develop and apply a theory of “relatedness” consistent with the independent counsel statute and the Constitution.
Because the Special Division’s January 1998 “related to” determination amounts to a legal judgment, we owe it no deference. We typically apply de novo review to decisions of other courts (except the Supreme Court) on questions of federal law, see Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994) (questions of law must be resolved de novo on appeal), and “[wjhen de novo review is compelled, no form of appellate deference is acceptable,” Salve Regina College v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). No one contends that the Special Division, as part of the D.C. Circuit, creates binding circuit precedent through its decisions. In relation to this court, the Special Division’s legal determinations resemble those of our sister circuits, whose conclusions of law we review neither directly nor deferentially.
Acknowledging that referrals could be characterized as judicial acts, Judge Williams says that referrals most closely resemble the issuance of search warrants by federal magistrates or state judges, whose determinations of probable cause, “[ajlthough made ex parte and resolving constitutional questions,” are accorded “ ‘great deference’ ” under settled law. Maj. Op. at 559 (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). In Gates, however, the Supreme Court made clear that the deferential standard of appellate review applicable to search warrants stems directly from the intensely fact-bound nature of an issuing magistrate’s probable-cause determination. See 462 U.S. at 232, 103 S.Ct. 2317 (“[Pjrobable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.”); id. at 241, 103 S.Ct. 2317 (“[Pjrobable cause deals ‘with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ”) (citation omitted). Unlike a magistrate, the Special Division does not “make a practical, common-sense decision” about probabilities when it considers requests for referrals. Id. at 238, 103 S.Ct. 2317. Rather, it compares two legal documents — the independent counsel’s referral request and the original grant of prosecutorial jurisdiction — and then determines whether the former is “related to” the latter within the meaning of the statute. Like a court evaluating a complaint on a motion to dismiss, the Special Division finds no facts, weighs no evidence, and makes no credibility determinations. It simply decides a question of law. Given the interpretive nature of this task, deference cannot be justified on the grounds “that the [Special Division] is ‘better positioned’ than the appellate court to decide the issue in question or that probing appellate scrutiny will not contribute to the clarity of legal doctrine.” Salve Regina College, 499 U.S. at 233, 111 S.Ct. 1217.
It is true that a referral under the independent counsel statute presents a situation “[wjhere ... the relevant legal principle can be given meaning only through its application to the particular circumstances of a case.” Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). But the Supreme Court has directed that in such sitúa-*592tions a federal appellate court must retain “its primary function as an expositor of law.” Id. De novo appellate review is particularly important where, as here, the relevant legal principle has constitutional dimensions. See, e.g., Thompson v. Keohane, 516 U.S. 99, 107, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (requiring federal habeas court to review de novo whether suspect was “in custody” at time of interrogation for purposes of Miranda); Miller, 474 U.S. at 112, 106 S.Ct. 445 (requiring “independent federal determination” of the voluntariness of a confession).
1 disagree that referrals will have no real function under the statute unless we defer to the Special Division. See Maj. Op. at 559. For one thing, the Special Division’s referral authority provides independent counsel, sensitive to both the limitations on their office and the ethic of self-restraint honored by federal prosecutors, with ah avenue for seeking independent and impartial confirmation of their authority. Immune from direct judicial review, a referral gives legitimacy to an independent counsel’s investigation even if a federal court later determines that a specific indictment exceeds the prosecutor’s jurisdiction. This legitimacy provides a level of protection against any attempt by the Attorney General to remove or by Congress to impeach an independent counsel on the ground that he has overstepped his authority. See 28 U.S.C. § 596(a)(1). The referral process also, empowers the Special Division to enforce the boundaries of independent counsel jurisdiction. Where the Special Division rejects a request for referral, only the most zealous and imprudent prosecutor would pursue matters covered by the rejected application. Far from existing “simply to relieve the solitude of the Independent Counsel’s office,” Maj. Op. at 559, the referral power thus serves important functions under the statutory scheme, constraining independent counsel when they near the limit of their authority and safeguarding their political independence if their investigative authority is challenged.
For all of these reasons, I would hold that this court owes no deference to the Special Division’s “related to” determination. In assessing the legality of this tax indictment, our review should be de novo.
Ill
This court’s conclusion that the Independent Counsel has authority to proceed with this indictment stems from its view, flawed in my judgment, that we would “undercut” Morrison were we to construe the independent counsel statute in ways “that prevent this Independent Counsel from performing his duty in a manner reasonably approximating that of an ordinary prosecutor.” Maj. Op. at 563. Insisting on affording the Independent Counsel the same “leeway,” id. at 561, given to “every other prosecutor,” id. at 563, the court ignores the basic premise critical to the constitutionality of the statute: Independent counsel do not and cannot have the powers of ordinary prosecutors. If they did, the office would “ ‘impermissibly undermine[ ]’ the powers of the Executive Branch.” Morrison, 487 U.S. at 695, 108 S.Ct. 2597 (citation omitted). Among other constraints, it is the limited jurisdiction of independent counsel that “give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties.” Id. at 696, 108 S.Ct. 2597. That an ordinary federal prosecutor might have authority to indict Hubbell for tax evasion therefore tells us nothing about whether this Independent Counsel — constrained by the statute and the separation of powers principle — may bring the same indictment. Nor do we learn anything from the authority possessed by the Watergate Special Prosecutor, see Maj. Op. at 561-562, for the full scope of his authority flowed directly from the Attorney General, thus presenting no separation of powers concerns.
Reviewing the record de novo, I would find that the indictment of Hubbell for tax evasion was not “demonstrably related to the factual circumstances that gave rise to the Attorney General’s investigation and request for the appointment of the independent counsel.” Morrison, 487 U.S. at 679, 108 S.Ct. 2597. Hubbell’s alleged failure to pay taxes on fees for work from 1994 to 1997 in Washington, D.C., is unrelated to whether, almost *593a decade earlier in Little Rock, Arkansas, “any individuals or entities have committed a violation of any federal criminal law ... relating in any way to James B. McDougal’s, President William Jefferson Clinton’s, or Mrs. Hillary Rodham Clinton’s relationship with Madison Guaranty Savings and Loan Association, Whitewater Development Corporation, or Capital Management Services, Inc.” Application for Appointment of Independent Counsel. The Attorney General who prescribed the original subject matter for investigation agrees. According to her amicus brief:
[A]n offense cannot be “related” within the meaning of [the statute] solely because an independent counsel discovers it during a legitimate phase of his investigation. That interpretation of the statute would allow an independent counsel to prosecute offenses that bear no relationship to his original grant of jurisdiction.
Amicus Br. for United States at 32. “The current prosecution,” the Attorney General concludes, “does not fall within [the Independent Counsel’s] authority directly to investigate the Whitewater/Madison Guaranty matter.” Id. at 34.
In reaching the opposite conclusion, this court rests its finding of “relatedness” on two assumptions: that the fees Hubbell received were payments for his silence, and that his failure to pay taxes on them had an obstructive effect on the Whitewater investigation. In my view, both assumptions are flawed, and each independently undermines the statutory and constitutional constraints on independent counsel jurisdiction.
Assumption of obstructive effect
I begin with the court’s second assumption, i.e., that Hubbell’s failure to pay taxes on alleged hush money had an obstructive effect on the Whitewater investigation. Not limited to Hubbell’s failure to pay taxes on alleged hush money, the indictment’s sheer breadth belies the court’s obstruction theory. The indictment charges Hubbell with nonpayment of taxes on income from a book contract with HarpersCollins Publishers, early withdrawals from an IRA account and pension plan, and sales of his home and a Little Rock warehouse. In addition, by charging Hubbell’s lawyer and accountant for aiding and abetting tax evasion, the Independent Counsel did not limit the indictment to individuals who could have obstructed the Whitewater investigation.
According to my colleagues, “any criminal conduct that could hide the hush money ... tends to impede investigation and prosecution of the matter being hushed up.” Maj. Op. at 561. “The less disclosure of the payments,” they say, “the less chance that they and their nature will come to light....” Id. But even assuming that Hubbell’s “consulting” fees were hush money (an assumption not supported by this record, see infra at 594-595), the facts of this case provide no support for the court’s concealment theory. In his 1994 tax return, Hubbell actually disclosed $376,075 in “consulting” income that the Independent Counsel suspects is hush money. This amount included $100,000 from Hong Kong China Limited and $62,775 from Revlon, the two sources the court highlights, see Maj. Op. at 555 & n.l, en route to finding that “[t]he timing, sources, and extent of the payments make the belief that they were hush money reasonable,” id. at 563. Acknowledging these disclosures, the court rests its finding of concealment on the fact that Hubbell did not report an additional $77,000 in “consulting” fees in 1994. See Maj. Op. at 561. But since Hubbell disclosed the lion’s share of the alleged hush money on his 1994 tax return — including the very payments that the Independent Counsel and my colleagues believe have the strongest whiff of obstruction — it seems odd to think that Hub-bell chose not to disclose the remaining fraction in order to conceal hush money payments. In any case, nothing in the record (beyond the non-disclosure itself) suggests that the $77,000 was hush money. See infra at 594-595. We thus lack any basis for suspecting that Hubbell’s non-disclosure reflected a concerted effort to hide hush money instead of a general tendency (apparent from the indictment) to ignore the internal revenue laws.
The court’s concealment theory makes much more sense in a case like United States v. Haldeman, 559 F.2d 31 (D.C.Cir.1976), *594cited in Maj. Op. 561-562. There the defendants directly obstructed the Watergate investigation by lying under oath to the Special Prosecutor, a grand jury, and a Senate committee about hush money payments they had made to the Watergate burglars. See 559 F.2d at 59; see also United States v. Blackley, 167 F.3d 543, 548 (D.C.Cir.1999) (upholding conviction of high-ranking Department of Agriculture official who concealed payments he received from individuals regulated by the Department by failing to disclose those payments on an official financial disclosure form whose very purpose was “to bring suspicious influences to the surface”).
The court next adopts the Independent Counsel’s argument that Hubbell’s failure to pay taxes “enhanc[ed] the financial or economic effect of the hush money payments. ... And that contributes to the obstruction of the investigation.” Oral Arg. Tr. at 16; see Maj. Op. at 561 (“[T]he more value Hubbell can squeeze from hush money ... , the more chance it will succeed in preventing his cooperation.”). But even if we again assume the payments to be hush money, their obstructive effect ended upon Hubbell’s receipt; his subsequent nonpayment of taxes bought his benefactors no further silence. The Independent Counsel never alleged that Hubbell’s benefactors somehow discounted the value of the alleged hush money by the probability that he would not pay taxes. Indeed, who could have foreseen the bizarre nature of the tax evasion scheme detailed in the indictment? Who would have expected that, having reported $376,075 of his $450,010 in “consulting” income on his 1994 tax return, Hubbell would then, as with his other income, not pay taxes on it?
The court’s economic enhancement theory permits virtually unlimited expansion of the Independent Counsel’s jurisdiction. Had Hubbell used the alleged hush money for profitable but illegal gambling or insider trading, for example, this theory would allow the Independent Counsel to indict him for these, crimes simply because they increased the value of the money. Surely this result stretches the concept of “relatedness” beyond its statutory and constitutional breaking point.
Together, the concealment and economic enhancement theories enable the Independent Counsel to comb through all of Hub-bell’s investments and expenditures — including, as the indictment reveals, his purchase of clothes, groceries, and laundry services— until discovering some illegality on which to indict him. By adopting these theories, the court converts the Office of the Independent Counsel from a device for investigating a specific “subject matter,” 28 U.S.C. § 593(b)(3), into a tool for prosecuting a specific individual. As the district court observed, “[t]he Madison-Whitewater matters that were the subject of the Original Grant and the tax matters that are the subject of this case have nothing in common — nothing, at least, that appears on this record — except Webster Hubbell.” United States v. Hubbell, 11 F.Supp.2d 25, 32 (D.D.C.1998). This is precisely the result Justice Scalia, dissenting in Morrison, most feared:
[T]he most dangerous power of the prosecutor [is] that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.
487 U.S. at 728, 108 S.Ct. 2597 (Scalia, J., dissenting) (quoting then-Attorney General Robert Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys (April 1,1940)) (quotation marks omitted).
Deeply corrosive to the statutory and constitutional limits on independent counsel jurisdiction, the court’s concealment and economic enhancement theories cannot justify a finding of “relatedness” in this case. In my view, this conclusion in and of itself is enough to sustain the district court’s quashing of the indictment. But because the court’s contrary *595holding also rests on the assumption that Hubbell’s fees were hush money, I set forth my views on this issue as well.
Assumption that Hubbell’s fees were hush money
Even if the court’s concealment and economic enhancement theories had merit, they have no applicability to this case for one simple reason: Both depend entirely upon Hubbell’s involvement in an underlying crime of obstruction — a crime unsupported by any credible evidence in the record.
In his brief, the Independent Counsel refers to the “possibility” that Hubbell “might have accepted money as an inducement to obstruct the Madison investigation.” OIC Br. at 20 (emphasis added); see also id. (stating that “large payments” on which Hubbell did not pay taxes “may be related to his non-cooperation with respect to Whitewater and Madison-related matters”) (emphasis added). Yet the Independent Counsel has chosen not to indict Hubbell for accepting hush money payments or anyone else for making them. Although I agree with my colleagues that the Independent Counsel need not formally charge Hubbell for accepting hush money in order to indict him for tax evasion, I disagree that we may sustain the tax indictment simply because the Independent Counsel is “diligently pursuing his investigation of the main allegation that [hush] money was channeled to Hubbell,” Wald Op. at 586. Without credible evidence that Hub-bell accepted hush money, there can be no “demonstrable] relationship]” between Hubbell’s tax crimes and the Independent Counsel’s original grant of jurisdiction. Morrison, 487 U.S. at 679, 108 S.Ct. 2597 (emphasis added).
At oral argument, the Independent Counsel conceded that “we right now, as a matter of public record, don’t know” that Hubbell’s “consulting” income was hush money. Oral Arg. Tr. at 18. Notwithstanding this uncertainty, my colleagues have seen no need either to accept the Independent Counsel’s offer to submit evidence in camera — evidence that he claims shows that the commission of that crime was more likely than not, see id. — or to remand to the district court to consider such evidence. Instead, they accede to his request that we not “indulge in the assumption that there is no evidence of obstruction,” id., shoring up the Independent Counsel’s innuendo with non-record evidence plus a little innuendo of their own, see Maj. Op. at 555 n.l.
The record in this case is quite unlike the record in United States v. Haldeman, where this court upheld the convictions of H.R. Haldeman, John Ehrlichman, and John Mitchell for “conceal[ing] a cover-up” in the Watergate affair. Maj. Op. at 562 (emphasis omitted). In that ease, the allegations that the defendants paid hush money to the Watergate burglars and then lied about it under oath were supported by vast amounts of credible evidence, primarily consisting of direct testimony and tape recordings of key conversations among the co-conspirators. See Haldeman, 559 F.2d at 55-59 (describing defendants’ “commitments” to pay the burglars hush money and detailing defendants’ extensive conspiracy to raise, transfer, deliver, and conceal the hush money payments).
My colleagues say that independent counsel should enjoy the same discretion that U.S. Attorneys have to charge defendants with “cover-up” crimes without charging them for the underlying crimes. See Maj. Op. at 562 (citing Department of Justice guidelines). But as I have pointed out, Hub-bell’s tax offenses cannot plausibly be labeled “cover-up” crimes. See supra at 593-594. Moreover, the court’s analogy is constitutionally flawed. It ignores the critical fact that U.S. Attorneys, unlike independent counsel, never need to prove that a particular crime falls within the jurisdiction ceded to them. They have authority to follow a trail of criminality and (subject to Justice Department procedures described below) to convert an investigation of real estate fraud into a prosecution of tax crimes. If the constitutional separation of powers precludes anything, it precludes the extension of such vast discretion to independent prosecutors who lack “the unifying influence of the Justice Department” and “the perspective that multiple responsibilities provide.” 487 U.S. at 732, 108 S.Ct. 2597 (Sealia, J., dissenting).
*596IV
Finally, in addition to adopting virtually limitless theories of “relatedness” and assuming that Hubbell accepted hush money, my colleagues discount the constitutionally significant requirement that independent counsel “comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws” unless “to do so would be inconsistent with the purposes of the [Act].” 28 U.S.C. § 594(f)(1); see Morrison, 487 U.S. at 696, 108 S.Ct. 2597. Under Department of Justice Tax Division Directive 86-59, all federal prosecutors, expressly including independent counsel, must follow certain procedures before “seeking to expand nontax grand jury investigations to include inquiry into possible federal criminal tax violations.” Authority to Approve Grand Jury Expansion Requests to Include Federal Criminal Tax Violations, 5 Dep’t op Justioe Manual 6-227, 6-227 (1995-1 Supp.). This directive prevents prosecutors from targeting an individual for tax crimes when their investigative authority extends only to a non-tax criminal investigation. Specifically, it requires all prosecutors to submit written requests to officials at the Internal Revenue Service and Tax Division “containing pertinent information relating to the alleged federal tax offenses.” Id. at 6-228. Approval requires an IRS referral certifying that “there is reason to believe that federal criminal tax violations have been committed.” Id. at 6-229. In addition, prosecutors must conduct grand jury proceedings “in sufficient time to allow the results of the tax segment of the grand jury proceedings to be evaluated by the Internal Revenue Service and the Tax Division before undertaking to initiate criminal proceedings.” Id.
In this case, I see no reason why the Independent Counsel could not have complied with Tax Directive 86-59. My colleagues are willing to assume that requiring such compliance would be “inconsistent with the purposes” of the independent counsel statute, 28 U.S.C. § 594(f)(1), attributing to the IRS — merely because it is an executive branch agency — a conflict of interest so severe that it cannot make a reasoned judgment as to whether Hubbell should be prosecuted for tax crimes. They apparently view compliance with Justice Department procedures as categorically “inconsistent with the purposes” of the statute whenever such procedures submit federal prosecutors to oversight by executive branch agencies. Surely section 594(f)(1) is not so toothless. This provision, which at the time of Morrison required compliance “except where not possible,” 28 U.S.C. § 594(f) (Supp. V 1983) (amended 1994), was viewed by the Supreme Court as one of the statutory safeguards ensuring that the Executive Branch has enough control over independent counsel to accomplish its constitutionally assigned functions. See Morrison, 487 U.S. at 696, 108 S.Ct. 2597.
V
In sum, I believe that the court’s finding of “relatedness” — premised on deference to the Special Division,’ unbounded theories of obstruction of justice, and unsubstantiated suspicions of illegality — undermines the constitutional constraints on independent counsel jurisdiction. Morrison endowed the statute’s jurisdictional controls with constitutional significance because it recognized that the absence of such controls would enable independent counsel to usurp executive power. This case provides reason to worry that the Office of the Independent Counsel indeed functions as a “mini-Executive ... operating in an area where so little is law and so much is discretion.” Morrison, 487 U.S. at 732, 108 S.Ct. 2597 (Scalia, J., dissenting). Because the constitutional separation of powers demands greater vigilance, I conclude that this Independent Counsel has exceeded his jurisdiction.
My conclusion would not impair the Ethics in Government Act’s “central purpose ... [of] permitting] 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), quoted in Maj. Op. at 560-561. This Independent Counsel’s original grant gives him all the authority he needs to prosecute Hubbell and others for obstruction of justice if he has evidence that Hubbell received hush money. See 28 U.S.C. § 593(b)(3). If he wants to prosecute Hubbell for self-standing tax of*597fenses discovered in the course of his investigation, he can ask the Attorney General to expand his investigative jurisdiction, see id. § 593(c), and then set in motion Justice Department procedures for prosecuting criminal tax violations, see supra at 562. As the subsequent indictment of Hubbell illustrates, see Neil A. Lewis, Starr Indicts Hubbell a 3d Time, N.Y. Times, Nov. 14, 1998, at Al, the Independent Counsel, short of pursuing this tax indictment, retains vast investigative and prosecutorial authority under the Special Division’s January 1998 referral.
I respectfully dissent.