July 28, 1998
Jim Lehrer discusses Monica Lewinsky's immunity deal with University of Colorado law professor Paul Campos.
JIM LEHRER: The Lewinsky immunity agreement. We begin with a legal explainer. It comes from Paul Campos, director of the Byron White Center for American Constitutional Study at the University of Colorado. Professor Campos, welcome. Transactional immunity is what Monica Lewinsky gets. What is that?
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PAUL CAMPOS, University of Colorado Law School: That basically means the fullest form of immunity that can be granted to a witness. As long as Monica Lewinsky tells the truth and performs what she has agreed to perform in her testimony, she cannot be prosecuted.
JIM LEHRER: And the word "transactional" means anything related to what this grand jury is investigating, correct?
PAUL CAMPOS: Correct. It means any of the transactions that have taken place that might involve criminal activity cannot be the basis for any future prosecution of the witness.
JIM LEHRER: And the only reason she could be prosecuted would be if she went before a federal grand jury or any other legal proceeding and the prosecutors decided she told a falsehood. Then she could be prosecuted.
PAUL CAMPOS: That's right. She could still be prosecuted for perjury. As her lawyers have said, she has to make a full and truthful statement, but if she does that, then she's off the hook.
JIM LEHRER: Assumptions of any kind are risky, particularly in this case, but can we assume at this point, based on past practice, Professor Campos, that the Kenneth Starr people know exactly what she's going to testify to, or they wouldn't have given her this deal?
PAUL CAMPOS: I think we can assume that. Normal procedure in these circumstances would require that the witness make a proffer of testimony to the prosecution before she's granted immunity. Essentially, she's told them in considerable detail what she's going to testify to, and in return for that, she's been granted the immunity.
JIM LEHRER: So if she were to go before a grand jury and say something different than she said in this "proffer," then will she be legally liable, or what would be the circumstance there?
PAUL CAMPOS: Well, the deal could be revoked if she does not perform to what she has agreed to testify to. The testimony is essentially a quid pro quo for the grant of immunity. So if she were to go forward and testify in a way that just does not jibe at all with what she told the prosecution she was going to testify you, then, yes, then she could be in trouble, but that-I don't think that's a real possibility in this situation.
JIM LEHRER: For us lay people, explain-let's say that just for discussion purposes that she met-the word is that she met for five to seven hours yesterday with Starr's people and that's where the proffer came. Let's say at the end of that five to seven hours in which she told them her story they couldn't make a deal. Could they have used what she told them against her?
PAUL CAMPOS: No, they couldn't, because the negotiations are privileged. They're not something that can be used against her in future proceedings. Obviously, that kind of a privilege is necessary in order for such negotiations to take place at all.
JIM LEHRER: Could they be used against someone else, against a third party that she might have talked about?
PAUL CAMPOS: Well, the actual negotiations, themselves, can't be entered into evidence; however, if she gives them information in negotiations and then she's called to the witness stand and then asked questions about the discussions-about the matters that were discussed-she will have to testify to that. All of that, of course, is now academic.
JIM LEHRER: Okay. Now back to the immunity, so we understand, you said this is the most extensive immunity possible, is that right?
PAUL CAMPOS: That's correct.
JIM LEHRER: All right. What are the others? Compare this one to the others.
PAUL CAMPOS: Well, the other form of immunity really that was available to the prosecution and there was a great deal of speculation that they were going to grant her this form of-this other form of immunity-essentially what's called use immunity or limited immunity where she would not be-where her testimony could not be used against her in future criminal proceedings but where she could still be prosecuted for the criminal activities that she had testified to if the prosecutors could find other evidence that they could use to prosecute her for the things that she had testified about.
JIM LEHRER: And that's the most common use of immunity, is it not, in criminal cases?
PAUL CAMPOS: Yes. It's used quite commonly and I think people were expecting that it would be used here, since there was some belief that Judge Starr had sufficient evidence from other sources, that he wouldn't have to grant Ms. Lewinsky transactional immunity and could just give her this much more limited grant, which would be of much less use to her.
JIM LEHRER: As here again based on past practice and custom, when is transactional immunity-what kinds of cases has transactional immunity normally been granted?
PAUL CAMPOS: Well, this is really a classic example of where you would want to use transactional immunity I think because you want to use transactional immunity in those situations where the witness who is being immunized is really someone who is a minor player in the overall scheme. It's someone who you're not really that interested in prosecuting, or he was not nearly as interested in prosecuting as someone else involved in the transactions, and so you're willing to let them go in exchange for valuable testimony. So this is really a classic example of where you would grant transactional immunity, it seems to me.
JIM LEHRER: You grant transactional immunity to a small fish in order to hook a larger fish, to use the common language, correct?
PAUL CAMPOS: Yes. Essentially that's correct. That is the classic pattern.
JIM LEHRER: And usually in organized crime matters and that sort of thing, is it not?
PAUL CAMPOS: Oh, absolutely. And there have been cases in which people who committed extremely serious crimes, multiple murders, have been granted-if not full transactional immunity-still deals that have been quite controversial, that they have done little or no jail time in order to be able to procure the conviction of the bigger fish in the net.
JIM LEHRER: All right. And also, just for the record, we reported it in the News Summary, but this same kind of immunity was granted also to Marcia Lewis, Monica Lewinsky's mother, so she also cannot be prosecuted for anything that she-anything involved in this particular matter too, is that correct?
PAUL CAMPOS: Yes, that's correct. And that's quite striking, because that would seem to indicate that she may have committed either perjury before the grand jury or may have counseled her daughter to lie to the grand jury since those seem to me to be the only indictable offenses of which she could possibly be charged.
JIM LEHRER: But whatever, she will not be charged?
PAUL CAMPOS: That's correct.
JIM LEHRER: All right. Professor Campos, thanks again for being with us.
PAUL CAMPOS: Thank you.