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 The Online Explainers take your question on the investigation.  The NewsHour's coverage of the Congressional Investigation.  The inside stories on the political fight behind the public investigation.  The investigation is big news in Washington, but how's it playing around the country.  A closer look at the issues really under scrutiny by the Congress.
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Mr. DiGenova, is there such a thing as limited immunity? JOSEPH DI GENOVA, Former Independent Counsel: Well, limited immunity is known in the law as testimonial immunity. There's a statute that provides for it. And it says that anything you say under a compulsion order given by a court cannot be used against you in any criminal proceeding. That's what limited immunity is. Mr. Huang's lawyer is seeking a type of limited immunity that only deals with some parts of his testimony. He made an offer the other day--a rather--it was sort of poorly phrased by Sen. Glenn. Sen. Glenn said that Mr. Huang is not going to take the 5th Amendment; all he wants is just partial immunity for some of his testimony. Well, that means, of course, he is taking the 5th Amendment with at least--for at least part of his testimony. Because the law of immunity has become so dangerous for prosecutors as a result of cases out of the Iran-Contra investigation, the-- JIM LEHRER: Explain that because in that case Oliver North was given immunity; he testified, even though he was not prosecuted later, based on his testimony, he was convicted, but it was thrown out because the court decided that it was a potential for tainting, right? JOSEPH DI GENOVA: That's right. The court said-- JIM LEHRER: Did I explain that well? Is it not-- JOSEPH DI GENOVA: Much better than I could have done. JIM LEHRER: Thank you. JOSEPH DI GENOVA: Basically, the court said unless you can show that no witness and no juror ever heard any of his testimony and couldn't have been influenced by it, you can't go forward with any prosecution. That's why the attorney general yesterday was adamantly opposed to granting Mr. Huang any kind of testimony. The simple way to deal with Mr. Huang's proposal is to call his bluff, simply have him come up and testify without a grant of immunity about the things he wants to testify about. And I guarantee you he'll never take that offer. JIM LEHRER: Mr. Ben-Veniste, how do you see this? First of all, do you agree that this issue of immunity is hard to give without, in fact, destroying a prosecution afterwards? RICHARD BEN-VENISTE, Former Whitewater Committee Counsel: Well, that's true in a highly publicized congressional setting such as we have here, that is the case. Oliver North is Exhibit A. He's walking around not because the courts found that the evidence was insufficient to prove him guilty of obstruction of justice, but because he was granted immunity, compelled to give up his 5th Amendment right, which he was relying on, and the law changed in the North case. It's different than it was under Watergate now, and so Oliver North essentially escaped incarceration. His conviction was overturned. JIM LEHRER: I'm sorry. Before you finish, explain how it changed from Watergate to Iran-Contra, but go ahead, I'm sorry. I didn't mean to interrupt. RICHARD BEN-VENISTE: Well, during Watergate you may remember that one of the great heroes of the Watergate saga, Archibald Cox, the first special prosecutor, objected to John Dean being immunized. The Senate went forward and immunized him. And I think everyone would conclude at the end of the day that that was a good thing; that it was important to get Dean's testimony. And the--the special prosecutor's office was determined, however, to pursue John Dean and prosecute him. And because of that, John Dean was obliged to plead guilty, and he did go to jail. The reverse was true in the Oliver North case because of the new rules that were applied by the court of appeals in the District of Columbia, federal district court, so that now it's virtually impossible to convict an individual who has been given immunity in a highly publicized manner where the fruits of his testimony are widely disseminated. And so I think there will be some very considerable reluctance to overcome what the career people at the Department of Justice, as Attorney General Reno has recently announced, in terms of their objection to Mr. Huang being immunized. I think this is consistent with 25 years of tension between independent counsels or the Department of Justice and Congress in highly publicized matters where important matters are discussed for purposes of granting immunity. JIM LEHRER: Now, Mr. DiGenova, as a practical matter, if this Senate Committee decides to grant immunity, there's nothing anybody can do about it, is that right? JOSEPH DI GENOVA: That is correct. If they decide they're going to grant him immunity and they can get 2/3 of the members of the committee to vote for it, they will be able to go to court and get a ministerial act from a federal judge, which he or she has no discretion not to do, to grant Mr. Huang immunity. And once Mr. Huang goes up there and starts talking anything that comes out of his mouth can never be used from it, and any evidence that would be derived from it can never be used by it. All the Justice Department does is get 20 days to segregate its evidence before the order is put into effect. JIM LEHRER: Yes. Go ahead. JOSEPH DI GENOVA: That's not exactly right in the case of the offer that has been made by Mr. Huang's counsel. That's why it's so intriguing. Mr. Huang's lawyer has said that Huang will not assert a 5th Amendment privilege with respect to the much more serious allegations that are swirling around concerning espionage, economic espionage; however, with respect to campaign finance violations, he would assert his privilege and would not testify without a grant of immunity. I think if there was a desire to accomplish what has been laid out in the proposal by the Senate that it could, in fact, be done. The question is whether you get over the threshold of whether the Senate will be virtually unanimous in its determination to seek Huang's testimony under the terms proposed. JIM LEHRER: Is there not an issue here, Mr. Ben-Veniste, always that which--which is the most important public goal to have, the public disclosure or the public testimony of a figure, John Huang in this case, versus trying to put him jail? RICHARD BEN-VENISTE: Well, that's exactly right. And I think one of the factors is whether there's immediate need to receive that information where there is a very significant public interest in getting this information out quickly. Here we have a Senate which is exploring--a Senate Committee which is exploring a very critical issue, one that is very important to our democratic system, and that is the incredible abuses that are foist upon us because of the demand to raise enormous sums of money to compete in politics now. The changes in legislation that were the result of the Watergate reform have long ago been evaded by smart lawyers and political operatives who seek political advantage. And at this point there is political advantage not only by the Republicans, who have out-raised the Democrats by some $200 million in soft money in the last cycle, but by incumbents as well, who have advantages in raising funds. So the question is whether these hearings are attached to a legislative purpose. In my view, the public will regard them as serious only at such time as the Senate is willing to put the McCain-Feingold bill on the floor and debate it and vote on it up or down. JIM LEHRER: All right. On the issue, Mr. DiGenova, of which is the most important here, to have John Huang sitting in front of Sen. Thompson and testifying or wait or do whatever is required to possibly prosecute? JOSEPH DI GENOVA: Well, I think in the scheme of things at the moment it is not important to hear from John Huang right now. I think it's important to give the attorney general more time to investigate. And if Mr. Huang is serious about his proposal that he doesn't want to take the 5th Amendment with regard to the economic espionage and the sharing of classified information, he should come up and testify right now, without any problems about that, and let the committee wait until September or October to decide whether or not it wants to give him immunity on the other issue. That way you don't-- JIM LEHRER: How would that-- JOSEPH DI GENOVA: What Mr. Huang did the other day was a ploy. It was designed to give Sen. Glenn something to say on the same day that Sen. Thompson had something to say. And what they did was they made what look like a generous offer of not claiming immunity for all the stuff that they think the government is going to have a hard time proving, but wanting immunity for all the stuff that the government has loads of evidence on, which is the illegal campaign contributions. If you mix those two together in congressional testimony, you run afoul of North and Poindexter and the possibility that later on Mr. Huang can say, well, you know, I've changed my mind. I think I will use the immunity I was granted, and I'm going to object to any prosecution against me for economic espionage. So by saying to him, Mr. Huang, we're going to bifurcate your testimony, you come up right now without a grant of immunity and tell us all about all these things you say you want to tell us. And then we won't ask you any questions about campaign stuff, and maybe in the fall we'll consider giving you immunity for that. But in the meantime, let's hear from you right now. Mr. Huang will not take that offer. JIM LEHRER: If you were his lawyer, would you advise him to take that offer? JOSEPH DI GENOVA: I would advise him to get immunity for everything and stop playing games. JIM LEHRER: Mr. Ben-Veniste, how do you see that? RICHARD BEN-VENISTE: Well, I think the offer is a little more sincere than my friend, Joe DiGenova, has made it out to be. Putting aside the political spin here, I think there are legal issues that is an appropriate thing to consider with respect to a witness being compelled to give testimony. The offer was made, as I understand it, as part of a package, if the Senate Committee wants to accept the package on that--those terms. And I'm not suggesting they should or they shouldn't. But if they wanted to, I think they could accomplish it by sequencing the testimony and taking the immunized testimony with respect to campaign financing and then having waivers with respect to so-called espionage. JIM LEHRER: Let me ask-- RICHARD BEN-VENISTE: Huang was in a tough position. The allegations were that he's some kind of a Chinese Communist agent, and I think he reacted to that in a way that was certainly creative. JIM LEHRER: For the record, each of you, beginning with you, Mr. DiGenova, if you were the prosecutor, if you were the attorney general, would you not also do what Janet Reno has said, don't do it? JOSEPH DI GENOVA: Absolutely. I would object strenuously and ask the committee not to do it at this time--maybe later--but not now. JIM LEHRER: Mr. Ben-Veniste. RICHARD BEN-VENISTE: As a former prosecutor, it's always the prosecutor's job to preserve his prosecution with as few problems as are possible, and in 25 years of looking at this, prosecutors have always objected to witnesses being immunized by the Senate. JIM LEHRER: All right. Thank you both very much. |
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