The Law: The Immunity Game

This week Federal Judge John J. Sirica will hold hearings and issue a ruling on one of the most important tactical questions of the entire Watergate investigation: Should former White House Counsel John W. Dean III be granted immunity from prosecution in exchange for his uninhibited testimony about who organized the affair and who tried to cover it up?

Such grants of immunity raise embarrassing moral questions, since they permit a wrongdoer to escape punishment by the simple expedient of informing on his associates. Yet legal authorities have traditionally accepted the pragmatic necessity of letting one possible criminal go free in order to catch and convict others, and the idea was formally put into law by the British Parliament in 1710. In the U.S., immunity was often granted unofficially or by various local laws, and the Supreme Court in 1896 gave its first complete approval to a federal immunity statute. The underlying legal theory is that when a witness is given immunity from prosecution, he cannot incriminate himself; therefore he cannot invoke the Fifth Amendment guarantee against selfincrimination, and he must talk or face a prison sentence for contempt.

Immunity was not a standard tool, however, and it was rarely applied to major criminals in major cases. This was partly because immunity was not legally available in the majority of criminal investigations. In addition, most immunity statutes barred prosecution for any "transaction, matter or thing" referred Jo in the testimony; so there was always .the possibility that a witness would take an "immunity bath" by mentioning every crime he had ever committed.

In 1965 federal prosecutors began to discover new potentials in the granting of immunity. Instead of being used as a dispensation to petty hoodlums in the hope of getting them to testify against their leaders, it could be used against the leaders themselves. Immunity was forced, for example, on Chicago Mob Boss Sam Giancana, against whom it had been impossible to get any criminal conviction. When Giancana still refused to talk to a grand jury, he had to spend a year in prison for contempt until the grand jury expired.

Interested in this use of the weapon, the incoming Nixon Administration favored a toughened version of immunity "to strike at the leadership of organized crime." Its 1970 Organized Crime Control Act, which John Dean helped draft, made the practice uniformly applicable in the investigation of any federal crime. The law also extended a full-fledged, formal power to grant immunity to congressional committees for the first time. Finally, and most controversially, the act dropped from federal law the traditional "transactional" immunity, which gave complete protection from any prosecution, and substituted "use" immunity, which v meant only that a witness could not be prosecuted on the basis of his own specific testimony or evidence developed as a result of it. Civil libertarians howled, but the Supreme Court last year upheld the Government's right to prosecute such a witness provided that the prosecution could prove that it was using evidence discovered without any help from the testimony that the witness had been forced to give.