Congress Must Go Slow on Immunity : Committees Can Do Their Work, but Let Walsh Also Do His

When the new Congress convenes, the question of granting immunity to Vice Adm. John M. Poindexter and Lt. Col. Oliver L. North in exchange for their testimony on the Iran- contra affair no doubt will resurface.

When it does, the congressional committees investigating this scandal will be framing a classic confrontation in the powers and responsibilities of two separate branches of government.

Congressional committees have the responsibility to oversee the adequacy of existing laws and to consider the need for new laws. In order to accomplish their mission, committees must have an adequate understanding of how current laws are operating and whether they permit conduct that should be prohibited. Thus, they have legitimate investigative and fact-finding functions. But they also perform the important but ancillary function of informing the American public on matters of national concern, especially matters involving the functions of the governmental process.

The executive branch, by contrast, has different functions and they sometimes collide with those of Congress. One is to investigate and prosecute crimes. The Constitution obliges the President to “take care that the laws be faithfully executed.” Congressional hearings, though, can obstruct the investigation and prosecution of crimes. Highly publicized hearings, especially if followed by an accusatorial report, may generate pretrial publicity that makes it more difficult to provide a defendant with a fair trial. Of more immediate concern, the grant of immunity to secure testimony in a congressional hearing may confound a prosecutor’s ability to proceed against that person.

When both intelligence committees recently agreed that it was premature to decide whether to grant immunity in this affair, they recognized that it is the rare transaction in government that has only one participant who is able to describe what occurred. Moreover, government functions through paper--memoranda, Telexes, meeting notes. Thus, no one can lightly assume that any person has testimony that is uniquely critical to learning who did what and who knew what.

Furthermore, a congressional committee cannot responsibly decide whether to jeopardize a potential prosecution by securing immunity unless the committee has a reasonably firm idea of the witness’s culpability. It is more appropriate to risk scuttling the potential prosecution of a peripheral figure, whose offense may be clumsiness rather than criminality, than to risk exonerating the principal malefactor.

Even the more-limited “use” immunity becomes a substantial and almost insuperable burden to later prosecution. To overcome this limited immunity, the prosecutor must show more than that he is not using the accused’s own statements as evidence against him at the trial. He also must establish that he has not used leads derived from compelled testimony in order to develop other evidence that will be used to prosecute and convict the witness.

A congressional committee that wants to seek an immunity order must give advance notice to the attorney general or, if there is an independent counsel, to that special official. Lawrence E. Walsh, the new independent counsel for the Iran-contra investigation, has inherited all the responsibilities that the attorney general otherwise would exercise over immunity questions: either to apply for immunity to aid the criminal investigation or to urge a congressional committee not to do so.

Nevertheless, the opportunity to consult with a congressional committee about its desire to seek immunity involves nothing more than “jawboning.”

During Watergate, the special prosecutor urged Judge John Sirica to refuse the immunity that the Ervin Committee had sought for presidential counsel John Dean and several other White House officials unless the committee agreed to take their testimony in secret. Judge Sirica, however, ruled that he had no discretion to withhold immunity if the committee chose not to relent. Thus, congressional committees have the ultimate power to decide whether to obtain immunity for a witness, even if he is the principal target of a criminal investigation.

That power, however, should be exercised sparingly. The current scandal illustrates why it should be possible to reconcile Congress’ legitimate legislative and disclosure functions with the independent counsel’s responsibilities to investigate and prosecute crimes.

The congressional committees have access to testimony from many witnesses who have decided to cooperate. They also have access to mountains of documentary evidence. Without the testimony of two of the central figures, there may be some loose ends to any congressional investigation. Nevertheless, it is doubtful that those missing details will be critical, either to understanding what occurred or to assessing its propriety. It is doubtful that Congress needs to know all the details in order to determine whether additional corrective legislation is necessary, yet that is the limited inquiry that Congress should be confronting.

In contrast, it is the function of the criminal process to sort out specific facts and to determine whether conduct was not merely clumsy but criminal, not merely ill-advised but illegal. Congress itself has established the appropriate mechanism for getting to the bottom of allegations of criminal violations by high officials of the government. That process involves assigning to an independent counsel all powers that the Department of Justice would otherwise have, particularly the authority to make determinations concerning the immunity of witnesses.

It will no doubt take the independent counsel several months to wrap his arms around the facts and to feel comfortable deciding whether crimes have been committed and, if so, by whom. In the meantime, it would be a gross disservice to the process of independent criminal investigation that Congress itself has established if a congressional committee immunizes witnesses who are the chief targets of the criminal inquiry, and by doing so preempts the judgments that have been entrusted to an independent counsel.

When the immunity question resurfaces, the various congressional committees would be well advised to stay their hand until they receive the comments of the independent counsel. If he urges the committees to forestall any applications for immunity, a healthy respect for the integrity of federal law enforcement should counsel the committees to respect that judgment.