The Constitution Can’t Be Rushed : Haste Makes Waste in Talk of Immunity for North, Poindexter

There is a cynical joke that East Europeans tell that reflects their distaste for the Soviet police state:

“How do you catch an elephant in the Soviet Union?”

“First you catch a mouse, and then you interrogate it until it admits it’s an elephant.”

That story, in a capsule, explains why the Fifth Amendment of our Constitution includes the privilege against self-incrimination--”nor shall (any person) be compelled in a criminal case to be a witness against himself.” It was adopted to protect the citizen against an earlier version of the police state--the English Court of Star Chamber and its successors, which could compel defendants to testify about their alleged crimes against the crown, including religious heresy, treason and seditious libel (even if true!).

In recent weeks this constitutional privilege has enjoyed perhaps its finest hour since the loyalty hearings that were held by the late Sen. Joseph R. McCarthy. It has been invoked not by suspected gangsters, drug pushers, bribe-takers or expense-account padders but by two decorated and respected military officers who are suspected of illegal actions taken not in their own interest but in what they believed, however wrongly, to be the national interest.

For those in and out of the Reagan Administration who want to get quickly to the bottom of the Iran arms deals and the contra connection, all of this comes as a great disappointment. Journalists and members of Congress, whether they defend or attack the actions of the Reagan White House, join in criticizing Adm. John M. Poindexter and Lt. Col. Oliver L. North for invoking their privilege. They call on Congress to compel the two men to testify by granting them immunity from any prosecution that is based on the use of that testimony. President Reagan has now joined this chorus.

At the same time, many in Congress call on the President to summon the two officers and, as their commander-in-chief, order them to tell him everything. Some have even urged that the President use his power to pardon the officers in advance of any indictment for any crimes that they may have committed related to the Iran-contra events so that they will have no constitutional right to invoke the privilege.

For now, all of these ideas are non-starters. None are likely to advance the time when all the facts will become public. All are likely to backfire on whoever attempts them.

Congress can confer immunity and compel testimony under pain of contempt, but Congress would be severely criticized if it did so before the newly appointed independent counsel has a chance either to make a criminal case against the officers without seeking their testimony or to grant them immunity in exchange for testimony that would make a case against even higher officials.

The President has no legal power to grant the two officers immunity, and no legal power to jail them for contempt if they decline to answer his questions.

A pardon at this time would bring down on the President’s head an even greater firestorm of public criticism. It would mark a 180-degree turn from his support for an independent counsel empowered to determine whether the officers should or should not be prosecuted for a crime.

Moreover, the two officers may refuse to testify and risk a contempt order even if they do receive immunity. Like Gordon Liddy, they may prefer a jail term to incriminating any of their collaborators up or down the line.

Finally, even if they should tell all, much of it would be classified and would probably have to be sanitized severely before it could be made public.

There is only one step that the President might take at this time to move his own and public knowledge along. That would be to exercise his power as the commander-in-chief to order Poindexter and North to answer his questions on pain of dismissal from the armed forces. But, under the Supreme Court’s rulings in similar cases, if they answered under this kind of compulsion their answers could not be used against them in any subsequent criminal proceeding. That result would checkmate the independent counsel before he has an opportunity to make his own decision about whether immunity should be granted and, if so, for what consideration in exchange.

Short of a purely voluntary decision by the officers to be forthcoming, like the Central Intelligence Agency aide who testified voluntarily under similar circumstances in the Angola hearings a decade ago, there is no way to satisfy the wish of the public and many public officials to get the facts out quickly. It may be in-convenient--some would say even dangerous--to endure several more months of suspense, but that is part of the price that we pay for a written Constitution that preserves the freedoms of us all.