Huang’s Immunity Bid Poses Quandary for Senate Committee

The unusual, eleventh-hour offer by John Huang to testify under an order of “limited immunity” creates a predicament for the Senate committee investigating the fund-raising scandal: Is the public’s interest in knowing what happened adequate reason for shielding a potential wrongdoer from criminal prosecution later?

Legal experts say congressional investigators face an either-or choice. They can either force a witness to testify under a grant of immunity, or they can wait for him to be prosecuted on criminal charges, but they probably cannot do both.

“With Congress, it’s all or nothing,” said Michael Chertoff, a former U.S. attorney and chief counsel in the Senate Whitewater investigation. “For all practical purposes, [a decision to grant] congressional-use immunity makes it virtually impossible to prosecute that person.”

But without hearing from a key player such as Huang, the Democrats’ chief fund-raiser among Asian Americans, the Senate hearings may yield close to nothing.

Sen. Joseph I. Lieberman (D-Conn.), a former state prosecutor, summed up the committee’s dilemma.

“In one sense, this is the star witness we have been looking for,” he said. On the other hand, he added, “to protect Mr. Huang from criminal prosecution for violating election laws is a very serious step.”

Perhaps no one knows better the perils of a congressional grant of immunity than former independent counsel Lawrence E. Walsh.

A former federal judge, he spent seven years investigating and prosecuting officials in the Reagan White House who secretly sold arms to Iran and funneled the profits to the Nicaraguan Contras, only to have his key convictions thrown out as tainted. In 1987, the congressional panel investigating the Iran-Contra affair forced White House aides Oliver L. North and John M. Poindexter to testify about their roles by giving them immunity.

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Walsh later prosecuted the pair, and it was agreed he did not use their words against them. However, the U.S. appeals court said the prosecutions were hopelessly tainted nonetheless because witnesses may have seen the two on television and had their memories “refreshed” by the compelled testimony.

“Anyone who grants someone immunity to testify in Congress has to assume it will kill the prosecution,” Walsh said Tuesday. “The court of appeals in our case said we had to prove that every witness--89 in all--was unaffected by what North said [in public]. As a practical matter, there is no way to get around that.”

Television coverage spreads the testimony far and wide. It almost assures that some witnesses in a future criminal trial will see at least a segment of the testimony. And a defense lawyer can claim that this witness against his client learned something new or had his memory “refreshed” by the TV testimony.

The Justice Department, which has a special task force investigating the possible campaign funding abuses, has no legal power to stop the Senate committee from going to federal court for an immunity order.

Its top officials could speak out against the move, but the department kept a low profile on Tuesday.

In his letter to Sen. John Glenn (D-Ohio), Huang’s attorney, Ty Cobb, said his client did not seek immunity for any charges related to spying, use of classified information or acting as an agent of a foreign government.

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However, he would want to be shielded from charges related to violations of the campaign finance laws.

There appeared to be a split among Justice Department officials over whether any “limited” immunity could be granted under the law.

“It’s at a minimum highly uncertain and may well be impossible,” said a veteran prosecutor.

An order compelling a witness’ testimony under a grant of immunity must be issued by a judge, and the prosecutor said it would be very difficult to create a court order that would permit use of the testimony for some charges, such as espionage, but not for others, such as election-law violations.

The wording of the immunity statute in the federal criminal code appears not to provide for half-way immunity. It provides that testimony, compelled under a grant of immunity, cannot be used to prosecute the immunized individual “in any criminal case.”

But Congress could still conclude it is more important to hear from a key witness than to prosecute potential wrongdoers to the maximum extent of the law.

Even Walsh, the former independent counsel, says it may be most important for Congress to clear up the confusion over the campaign-finance laws.

“The law in this area is such a mess. It is so ambiguous. If Congress were acting in good faith, it might well serve the country better [to go ahead with the compelled testimony] than to have a prosecution later,” he said.

Times staff writer Robert L. Jackson contributed to this story.

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Immunity Fact Sheet

A reluctant witness, John Huang, is making an offer that could lead to his testimony.

TYPES OF IMMUNITY

Use immunity: Shields a witness from his or her own words. Testimony cannot be used against a witness, but other evidence could be used for prosecution. This is the only type of immunity that Congress can grant.

Transactional immunity: Covers an entire transaction, such as a financial scheme. Only federal prosecutors can grant this type of immunity. It is rarely granted.

WHAT HUANG WANTS

His attorney has proposed the Senate committee offer his client “limited immunity” that would not shield him from prosecution for espionage or revealing classified information. It would shield him from prosecution for illegal fund raising activities. It is unclear whether it is legally possible for Congress to authorize such a partial immunity.

“Mr. Huang feels compelled to forgo the security of his constitutional protections and to attempt honorably to acknowledge whatever mistakes he may have made over time.”

--Ty Cobb, Huang’s attorney, in letter to the committee.