July 14, 1997

A Sketch of the Rules

In March of this year, the Senate gave the Committee on Governmental Affairs $4.35 million to conduct an investigation of "illegal and improper activities in connection with" the Federal election campaigns of 1996 [S.Res. 39]. Public hearings began last week, and attention quickly turned to whether John Huang, a key witness who had raised funds for the Democratic National Committee, would be given immunity for his testimony.

"Use Immunity" Replaces "Transactional Immunity". Prior to 1970, the Federal Government had more than 50 immunity statutes, and it seems that all of them gave a witness transactional immunity, meaning that a witness would be given immunity for any offense (the transaction) to which his compelled testimony related. In 1970, however, Congress decided to unify its statutes and try a more narrow approach. The old laws were scrapped and replaced with a law that offers witnesses use and derivative use immunity.

Under the 1970 law, codified at 18 U.S.C. §6001, et seq., whenever a witness refuses to testify or produce other evidence "on the basis of his privilege against self-incrimination," a committee may obtain from a federal district court an order that requires the witness to testify — "but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case . . ." [§6002]. When a witness has been given the statutorily prescribed use and derivative use immunity, his compelled testimony cannot be used against him if he is prosecuted for an offense to which his testimony relates, and the prosecution cannot use any evidence against him that was derived from his compelled testimony. Evidence of his wrongdoing must be gathered without direct or indirect use of his compelled testimony. The Supreme Court has said that the burden is on the government to show that the evidence was "derived from a legitimate source wholly independent of the compelled testimony."

Statute Passes Constitutional Test. The 1970 statute was upheld by the Supreme Court in 1972. It would have been struck down if it had narrowed the Fifth Amendment’s privilege against self-incrimination, but the Court said the law "leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed" his privilege. The statute was upheld because it was "coextensive" with the Fifth Amendment ("No person . . . shall be compelled in any criminal case to be a witness against himself").

300 Witnesses & Counting. Congress has used the 1970 statute to obtain the testimony of more than 300 witnesses. It first used the statute broadly during the Watergate investigation where 27 witnesses were immunized. In the Iran-Contra investigation, 26 were given immunity.

The Iran-Contra Precedents. In two Iran-Contra cases, the U.S. Court of Appeals for the D.C. Circuit held that the government could not use against Messrs. North and Poindexter the testimony of any witness whose own testimony had been "in any way shaped, altered, or affected by" immunized testimony. Indeed, the Court held that a witness’s memory could not be "refreshed" by exposure to immunized testimony. With these precedents, Congress seems to be using the immunity statute more sparingly because of the greater risk that immunity offered by Congress will jeopardize subsequent prosecutions.

Committee Action. If a committee does decide to grant immunity by obtaining a court order, the committee must act by "an affirmative vote of two-thirds of the members of the full committee" [§6005(b)(2)], but it may act unilaterally. The committee does not need the approval of the full Senate [cf., §6005(b)(1)], and it does not need the approval of the Attorney General, although she is entitled to ten days’ notice [§6005(b)(3)] and may defer the issuance of any order for up to 20 days [§6005(c)]. This procedure allows the Department of Justice time to insulate its evidence if Congress is going to grant immunity. Typically, of course, a congressional committee confers with the Department of Justice so as not to jeopardize a pending case. (It has been reported that Attorney General Reno opposes the committee’s giving immunity to Mr. Huang.) A witness has no right to participate in the court proceedings, and the court has no discretion if the committee followed the statutory requirements [§6005(a)]. Generally, however, a committee will give a witness notice of its intentions, and, as in the case of Mr. Huang, the committee and the witness may attempt to work together. If a witness refuses to obey a court order, the Senate may seek enforcement through contempt proceedings [see 2 U.S.C. 288d].

Is There "Limited Immunity"? There is talk about Mr. Huang getting "limited" or "partial" immunity. Chairman Thompson said yesterday on "Meet the Press" that he doesn’t think there is such a thing. The Office of Senate Legal Counsel has concluded that it is "extremely doubtful" that "limited immunity" is available in the congressional context because, when a witness is ordered to testify before Congress, he is entitled only to that immunity that is provided by the statute, viz., an immunity against the use of all information provided and not an immunity respecting particular acts. The statute says that immunized testimony cannot be used "against the witness in any criminal case." However, "limited immunity" is sometimes used by U.S. attorneys (it means that a witness contracts with the prosecutors to tell what he knows in exchange for their promise not to use his testimony in their direct case against him). Something like this seems to be what Mr. Huang has in mind. We can expect continuing discussions about Mr. Huang’s appearance before the committee.

[Sources: The quotations are from Kastigar v. United States, 406 U.S. 441, 460 & 462 (1972), and United States v. Poindexter, 951 F. 2d 369, 373 (D.C. Cir. 1991). Three memoranda obtained from the Office of Senate Legal Counsel were particularly useful in the preparation of this paper. Also used were, G. Hughes, "Agreements for Cooperation in Criminal Cases," 45 Vanderbilt L. Rev. 1 (1992), and J. Cohen, "The Many Different Kinds of Federal Immunity," New York L. Jn. 1 (Mar. 15, 1995).]