Hearings, yes; immunity, no

August 3, 2005

There’s a widespread concern that congressional hearings on the Plame scandal could, in theory, offer Republicans an opportunity to extend immunity to White House officials who may have broken the law. I’ve never been entirely clear on the legality of the strategy, but those who’ve been concerned might take solace in the fact that at least one Dem senator is on the case (via C&L).

Sen. Frank Lautenberg (D-N.J.) sent this letter to the Republican chairmen of the respective intelligence committees in the House and Senate:

It is my understanding that both the Senate and House Intelligence Committees intend to conduct hearings on our nation’s intelligence agencies and the use of covert agents. While I applaud your Committee’s efforts to investigate the Plame affair, I urge you to not provide an opportunity for any wrongdoers to escape culpability for criminal actions that may have put our national security at risk.

As you know, Congress has the power to grant immunity to witnesses who appear before its committees. However we must be mindful of the warning delivered by Independent Counsel Lawrence Walsh at the end of his seven-year investigation into the Iran-Contra affair. His investigation was hampered, and the convictions of Oliver North and John Poindexter overturned on appeal, due to immunity granted by Congress in exchange for testimony before Iran-contra committees. Walsh advised that Congress should think carefully before granting immunity, and be cognizant that “if it wants to compel testimony by granting immunity, it has to realize that the odds are very strong that it’s going to kill any resulting criminal prosecution.”

The leaked identity of a covert officer of the United States is a serious matter and should be fully investigated. Those responsible for the leak should be prosecuted for their involvement. Although Congress can and should independently investigate this leak and any efforts to cover-up the leak in the White House, such an investigation should not serve to relieve any White House official of culpability for criminal wrongdoing.

I don’t know if this was a part of the GOP strategy or not, but, at a minimum, Lautenberg’s letter can be summarized into five words: Don’t even think about it.

Post Script: If any of my lawyer-trained readers want to explain whether this “immunity trick” is even possible in the Plame scandal, I’m all ears.

It’s a lot less useful than in Iran-Contra, since it will be easy for Fitzgerald to demonstrate that he’s working from statements that were already in the record before the grant of immunity. Walsh didn’t have that.

  • I’m not a lawyer, but the possibility of immunity makes me nervous. Kudos to Lautenberg for taking this on.

  • I agree, Kudos to Sen. Lautenberg, though I fail to see how a letter from a Democratic Senator will prevent the Republican majority from doing anything, unwarrented, unwise, unethical, or illegal. I have not noticed that they give a damn one way or the other what anyone thinks.

    It’s as if ALL the precincts in the all the world were powered by Diebold.

  • Someone had a very compelling post on TPM Cafe last week laying out all the legal reasons why in fact immunity is out of the question in this case. I’ll try to find a link, but if I can’t, I believe that the gist of the post was Fitzgerald already has sworn testimony in the bag. Walsh didn’t get testimony until after Ollie and Buster had spilled the beans to dimwit Daniel Inouye and co.

  • But immunity is against a crime, not testimony. So (and I may be wrong here, please chime in), if they are granted immunity about crimes they testify to, they will have immunity to those crimes irregardless of past testimony.

    Although. . . they would probably not have immunity regarding prior false testimony, right? Maybe a last-ditch angle to pursue should the worst come to pass.

    And there’s always the presidential pardon. . .

  • Lawyers, chime in please. I’d like some
    legal opinions, too.

    Eadie, where have you been?

  • Immunity is generally granted such that the testimony they give cannot be used against them.

  • The legality doesn’t matter. Any administration that can come up with a way to claim that torture is legal can twist out a way to grant immunity to its own.

    And, while I’m glad Lautenberg is monitoring this, I don’t know what good it would do. This is an administration that has ZERO shame.

    They would probably think it just another slick manuever in their sick, amoral power game, and after launching yet one more giant F-YOU to the entire country and a pissing on a 218-year tradition of at least outward respect for democracy, go home and congratulate themselves on such a masterful power play.

    Their base (as usual) would ignore the reality of what had happened and applaud, the few remaining sane Republicans collaborators would make excuses, Joe Lieberman would shrug “what can we do” and the rest of us … well, we’re all reality-based (ie., “traitors”) so who cares about the rest of us?

    This is just getting so old.

  • As I recall, it was not immunity per se that sunk the North and Poindexter convictions, but rather that their testimony was effectively in violation of the 5th amendment to self incrimination. They did testify prior to any testimony to Walsh or a related grand jury so this does seem to be different, but I am not a lawyer.

  • One must understand the difference between Congressional grants of “use” immunity on the one hand, and “transactional” immunity on the other. “Use” immunity means that the witness’ testimony cannot be used in any future prosecution; “transactional” immunity is a much broader immunity that precludes prosecution for acts connected with the subject of the witness’ testimony.

    If Pat Roberts or Pete Hoekstra (Chairmen of the Senate and House Intelligence Committees, respectively) grant “use� immunity only, then since Fitzgerald has most of his investigation done and testimony on the record with the grand jury, the witnesses who get the “use� immunity will still be in trouble for the underlying crimes they may have committed. In any subsequent prosecutions, Fitzgerald will not be able to use any evidence the Congressional Committees develop through the hearings process – Fitzgerald will have to show that “his evidence� is not based on the Congressional evidence directly or indirectly.

    On the other hand, if Roberts and/or Hoekstra grant a Congressional witness “transactional� immunity, then one can conclude that criminal prosecutions of those witnesses will be impossible to sustain. The “transactional� immunity gives the witness freedom from prosecution for the underlying crimes, and any actions the witness(es) took in committing or furthering those crimes. The only silver lining in this scenario is that if the witness lied to the grand jury, then he can be prosecuted for perjury.

    For a good primer on the interaction between Congressional grants of immunity and criminal investigations — written in the context of the Enron hearings, but still valuable here, including the discussion of the Iran-Contra hearings — go see this:

    http://writ.news.findlaw.com/lazarus/20020205.html

    The bottom line is that a Congressional Committee too interested in making headlines or scoring political points can really jeopardize any likelihood of criminal convictions, especially for those most culpable. Let’s hope that Lautenburg is successful in blocking Roberts and Hoekstra by his preemptive volley against the grant of immunity for any witness that may appear before the respective Committees.

    P.S. I just saw this post early this morning (Thursday), so my comment may not be read by many others here. Hope it is helpful in keeping our fears of Roberts/Hoekstra in check; meaning we have plenty to fear on a rational basis (i.e., if Roberts/Hoekstra grant only “use” immunity or none at all), so there is no need to go off the “deep end” with irrational worry that Roberts/Hoekstra will grant “transactional” immunity — until they actually do it!!

  • On the other hand, if Roberts and/or Hoekstra grant a Congressional witness “transactionalâ€? immunity…the only silver lining in this scenario is that if the witness lied to the grand jury, then he can be prosecuted for perjury.

    Well, it would seem that Congress could question any witnesses on the “transaction” of their testimony, and thereby immunize them from perjury charges stemming from the transaction, wouldn’t it?

    But…Congress replaced all its existing immunity statutes (which provided for transactional immunity) with 18 U.S.C. Section 6001 et seq., which allowed only for use immunity. So I think the scary issue of transactional immunity would call not only for a grant of immunity, but a new law. Ain’t no federal transactional immunity, and ain’t been none for 30+ years. So I think we can relax. Phew! You had me freaking out for a few minutes there, before I found the law.

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