Immunity Can Work if Used With Care

To get the truth out quickly in the Iran arms scandal, President Reagan has suggested to Congress that a grant of immunity be made to two of his former aides, Vice Adm. John M. Poindexter and Lt. Col. Oliver L. North, who have asserted the privilege against self-incrimination before congressional panels investigating the scandal.

“There is an urgent need,” the President says, “for full disclosure of all the facts.” Vice President George Bush has even urged the two to waive their privilege against self-incrimination and testify fully without immunity.

Former Watergate Special Prosecutor Archibald Cox and one of his former assistants, Philip A. Lacovara, have publicly demurred to the suggestion of a congressional immunity grant. “Congress,” Cox suggests, “should reject President Reagan’s request that it rush into hurried immunity from prosecution.

“It would,” he says, “risk unnecessarily exculpating two of the principal actors in what may well be a major conspiracy to subvert the laws at the highest levels of government.”

Lacovara, in turn, agrees that a grant of congressional immunity at this stage of the investigation into the arms scandal would prevent the independent counsel, Lawrence E. Walsh, whose investigation is soon to get under way, from arguing that a subsequent prosecution was “based on untainted information.”

“Normally, a prosecutor defers making immunity decisions,” he says, until the latter stages of an investigation, when it can be determined if making them may be “unnecessary.” Members of Congress have expressed hesitation and opposition.

Deciding on a proper course of action for the congressional investigators to follow requires an appreciation of the character of modern federal immunity law--an appreciation not always possessed by those whose experience has been largely limited to prosecution--and a willingness to make an imaginative use of the options to Congress offered by the 1970 immunity law reform.

The immunity technique has historical roots, which run almost as deep as those of the privilege against self-incrimination itself. But two significantly different types of immunity statutes have been enacted by the federal government. At one time, it was thought that immunity--to displace the privilege against self-incrimination--had to be from prosecution itself, so-called “transaction” immunity.

In 1964, however, the Supreme Court held in Murphy vs. Waterfront Commission that it was constitutional if the witness was safeguarded against any direct or derivative use of his compelled testimony, so-called “use” immunity. In Title II of the Organized Crime Control Act of 1970, Congress adopted a use immunity statute applicable both to criminal and congressional investigations. It was upheld as constitutional in Kastigar vs. United States. The Ervin Committee, which looked at Watergate, secured the immunized testimony of John Dean and Jeb Stuart Magruder as well as 25 other witnesses. Dean and Magruder were subsequently prosecuted successfully. The Stokes Committee, which looked into the assassinations of President John F. Kennedy and the Rev. Martin Luther King Jr., secured 165 immunity grants, two of which were for Mafia bosses under active criminal investigation by the Department of Justice. Neither grant interfered with subsequent prosecutions of the organized crime leaders.

Use immunity, in short, can be used successfully to get the truth out in a congressional investigation without jeopardizing subsequent criminal prosecutions. Unfortunately, most former federal prosecutors tend to react to a suggestion of an immunity as if it were transaction, not use immunity. Intellectually, they may know the difference, but imaginatively they still tend to think in terms of the old law.

Contrary to the objections of Cox and Lacovara, Poindexter and North could be immunized and their testimony secured without unduly endangering subsequent criminal prosecutions. It is all a matter of care and imagination. For example, each could be separately, but simultaneously, immunized and questioned independently in executive session. Because the testimony of each, therefore, would have been obtained without any use of the other’s testimony, the testimony of each person could thereafter be used to prosecute the other.

Poindexter and North are woefully misguided patriots, not professional criminals; therefore it is more likely than not that once immunized, they will testify fully--without contempt or perjury, neither of which, in any event, would be protected by an immunity grant. As such, there is little to fear in immunizing them in the early stages of a congressional, as opposed to a criminal, investigation. Once their testimony was obtained, a decision could be made about rehearing it in public session; it would be possible then to judge, not speculate, if it would undermine the chance for later prosecutions.

It is in the public interest that the Iran sore be quickly cauterized. Waiting until the independent counsel finishes his investigation--or has time to run it out substantially--puts the interest of a successful criminal prosecution ahead of the interest of the commonweal in the truth. That course of action mistakenly and unnecessarily strikes the wrong balance. Use immunity should be quickly, but carefully, used to obtain the truth without further painful delay.