A Staff Report from the Straight Dope Science Advisory Board

Can the President grant immunity from prosecution?

October 7, 2008

Dear Straight Dope:

I love Fox's 24. A common plot device in the show is for the bad guy to demand and get a letter of immunity from prosecution signed by the President in exchange for some vital piece of information. The immunity always seems to hinge on the information being true and resulting in the capture of some villain or the recovery of the explosive du jour. Is any of this true? Can one demand immunity from prosecution signed by the President, and, more importantly, can one expect to get it?

SDSTAFF Gfactor replies:

Let's start with the basics. You can get several kinds of immunity. The broadest is transactional immunity. A witness with transactional immunity is immune from criminal prosecution for all conduct (transactions) discussed in the testimony. Use immunity is the narrowest. A witness with use immunity can't have her testimony used against her but may be prosecuted for the conduct she testifies about based on independent evidence. In the middle is "use and derived use" immunity, which means neither the testimony nor information derived from the testimony can be used against the witness in a criminal prosecution.

Formal immunity is granted by a court, usually to reluctant witnesses. The Fifth Amendment prevents a witness from being compelled to testify against himself. Often a witness called before a grand jury will refuse to answer certain questions on Fifth Amendment grounds, even though his testimony is crucial to a case against someone else. Formal immunity (sort of) solves this problem. Section 6002 of Title 18 of the United States Code says a witness can't refuse to testify if the court has granted him immunity. By statute, only a U.S. attorney — a federal prosecutor — can request immunity, and only with the approval of the attorney general or certain others in the attorney general's office. If the U.S. attorney requests immunity, the court pretty much has to grant it. The kind of immunity granted is use and derived use immunity. If the witness refuses to testify after it has been granted, the court can hold him in contempt.

Formal immunity is no help with witnesses the authorities want to question before convening a grand jury — for example, if they need information to find a fugitive or get a warrant. That's where informal immunity agreements come into play. The prosecution and the witness can agree to just about any kind of immunity they want, and the agreement will be enforced like any other contract, with one caveat: Unlike a formal grant of immunity, immunity agreements entered into by the federal government aren't binding on the states — see http://www.usdoj.gov/usao/eousa/foia.../crm00719.htm.

Now to your question — can the President enter into an immunity agreement with a potential witness? Probably yes, but two troubling possibilities arise. First, what if federal prosecutors won't play ball? Can the President simply order the U.S. attorney not to prosecute? This is more complicated than it seems. Many scholars contend that, George W. Bush's protestations notwithstanding, the President in many contexts is not the decider regarding federal prosecutions — he's authorized to appoint and remove deciders, but his job is to supervise.

In 1831, President Andrew Jackson was faced with this very issue. Two years earlier, a man known as Constant Polari or Carrara broke into the palace of Laken [link] in Brussels and stole, among other things, royal jewels belonging to the Prince and Princess of Orange. After some intrigue straight out of National Treasure (some of the items taken were hidden in a compartment in a writing desk), Polari was arrested by U.S. customs agents [link]. Some of the jewels were retrieved, and the President wanted to return them to the Netherlands. Unfortunately, the district attorney was pursuing a forfeiture claim against the jewels and wasn't inclined to stop. Jackson asked then-attorney general Roger Taney if he could make the DA back off. Taney's opinion, titled The Jewels of the Princess of Orange [link], said he could, sort of. The President has the power to direct the district attorney to stop, Taney wrote, but:

The District Attorney might refuse to obey the President's order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the President himself could give no order to the court or to the clerk to make any particular entry. He could only act through his subordinate officer, the district attorney, who is responsible to him and who holds his office at his pleasure. And if that officer still continues a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the substitution of one more worthy in his place would enable the President through him faithfully to execute the law.

This advice was put to the test during Andrew Jackson's Bank War [link]. Jackson opposed the idea of a U.S. central bank, and in 1833 instructed the secretary of the treasury, Louis McLane, to remove the government’s funds from the Second Bank of the United States. Professor Peter Strauss explains [link], "the Bank’s authority ran until 1836, and the relevant statute provided that government funds were to be kept in it 'unless the Secretary of the Treasury shall at any time otherwise order and direct.' When Secretary McLane decided against removing the funds, Jackson removed him and appointed William Duane as his successor." When Duane also said no [link], Jackson appointed Roger Taney to replace him. Taney did as he was told, but that didn't go over so well with Congress. As Strauss explains:

The Senate passed a Resolution of Censure and subsequently rejected Taney’s nomination as Secretary — the first time in American history it had rejected a presidential nomination to the cabinet. When, in 1835, President Jackson nominated Taney to a seat as Associate Justice of the Supreme Court, that nomination, too, failed. Changes in Senate membership finally permitted his renomination and confirmation as Chief Justice months later, in 1836, and the eventual expungement of the Resolution of Censure.

A more recent example is the the infamous Saturday Night Massacre during the Watergate scandal, when Richard Nixon instructed his subordinates to dismiss the special prosecutor. Both Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus refused the order and were promptly fired. Nixon finally appointed Solicitor General Robert Bork, who did the deed. The Washington Post noted that this "immediately raised prospects that the President himself might be impeached or forced to resign" [link].

Even if the President couldn't find anyone to do his bidding, he has other options — he could grant a pardon instead. In a recent law review article, professor Russell Christopher notes: "The early American roots of inducing reluctant witnesses to testify, despite their assertion of the Fifth Amendment privilege against self-incrimination, lie not in statutory grants of immunity, but in presidential pardons." Professor James Flannagan fleshes out this idea when he says, "Immunity is one of the tools necessary to the Executive's enforcement of the criminal laws. The need for immunity was recognized at the Constitutional Convention, when the power to pardon was given to the Executive partly because prosecuting some crimes will require granting a pardon to obtain testimony from an accomplice."

The pardon power is useless if the President needs to compel testimony. In Burdick v. United States [link], the U.S. Supreme Court vacated a contempt order from a lower court after President had granted Burdick a full pardon but Burdick refused to testify. The court held that Burdick could reject the pardon because, unlike a grant of immunity, a pardon "carries an imputation of guilt; acceptance a confession of it." This reasoning has been criticized, but that's not relevant in the 24 ticking-bomb scenario — the bad guy with the information just wants to stay out of jail.

Accepting a pardon in exchange for evidence has some serious downsides. First, a pardon offers no protection from prosecution by the states — although as we've seen, neither does a presidential immunity agreement. Only a formal grant of immunity by a court or an immunity agreement made by state prosecutors protects a witness against state prosecution.

Another drawback of a pardon, some argue, is that it can be revoked by the grantor or possibly even a subsequent President under some circumstances [link]. If a pardon is revocable, then its value as a bargaining chip is obviously much lower. These arguments are based on an 1869 U.S. district court opinion called In re DePuy, which held that an undelivered pardon could be revoked by a subsequent President, but noted that a delivered pardon was not revocable.

That brings us to the second troubling possibility for our bad guy. What if the President wishes to repudiate the immunity agreement later?

Prosecutors sometimes argue that the person making an immunity agreement had no authority to bind the government. For example, cops and federal agents may promise leniency if a suspect cooperates, but rarely have the authority to make agreements like that stick. When the issue comes up in court, the defendant usually loses. But it'd be tough to make that argument about an immunity agreement entered into by the President — federal case law says agreements approved by a U.S. Attorney or above are enforceable, and presumably that includes the President.

The agreement's enforceability could be attacked on other grounds, though. If a terrorist approached the President and said, "I'm going to blow you up with a bomb unless you give me immunity from prosecution," the resulting immunity agreement probably wouldn't be enforceable — basic contract law recognizes that a coerced agreement is invalid. On the other hand, if the authorities offered a terrorist immunity in return for information about an imminent attack, chances are they wouldn't be able to renege later. Though the bargain might have been desperate, it's hard to argue that it was coerced.

Finally, immunity agreements usually stipulate that the information provided be true. If the guy provides false information, that would be grounds for refusing to enforce the agreement [link].

In short, the bad guy can ask the President for immunity and the President can probably grant it one way or another. But it may not do the the bad guy much good — he's still vulnerable to prosecution under state law, and the President can't grant immunity from that.

References

Christopher, Russell, "The Prosecutor's Dilemma: Bargains and Punishments," Fordham Law Review, Vol. 72, October 2003, available at SSRN: http://ssrn.com/abstract=467502 or DOI: 10.2139/ssrn.467502

Criminal Resource Manual 719, "Informal Immunity Distinguished From Formal Immunity":
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00719.htm

Edwards, Charles, Pleasantries about Courts and Lawyers of the State of New York (1867): http://books.google.com/books?id=fQA9AAAAIAAJ&printsec=titlepage#PPA277,M1

Goodnow, Frank, Selected Cases on Government and Administration (1906): http://books.google.com/books?id=G989AAAAIAAJ&printsec=titlepage#PPA38,M1

In re Grand Jury Subpoena (Persico), 522 F.2d 41 (2d Cir. 1975): http://bulk.resource.org/courts.gov/c/F2/522/522.F2d.41.75-2030.880.html

James Flannagan, "Compelled Immunity for Defense Witnesses: Hidden Costs and Questions," 56 Notre Dame Lawyer 447, 448 (1981)

Leonard N. Sosnov, "Separation of Powers Shell Game: The Federal Witness Immunity Act," 73 Temp. L. Rev. 171 (2000).

Strauss, Peter L., "Overseer, or 'The Decider'? The President in Administrative Law,"75 George Washington Law Review 696 (2007): http://docs.law.gwu.edu/stdg/gwlr/issues/pdf/StraussForeword75-4.pdf

United States Attorneys' Manual, 9-27.600-630, Entering into Non-prosecution Agreements in Return for Cooperation: http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/27mcrm.htm#9-27.600

United States v. Cameron, 2006 U.S. Dist. LEXIS 87191 (D. Or. 2006)

United States v. Flemmi, 225 F.3d 78, 84 (1st Cir. 2000)

United States v. Lua, 990 F. Supp. 704; 1998 U.S. Dist. LEXIS 694 (N.D. Iowa 1998)

United States v. Williams, 780 F.2d 802, 803 (9th Cir. 1986) (per curiam)

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