Memorandum: Inability of Federal and State In In the attached letter, it is represented that in the event use immunity is not granted to a potential witness, the Select Committee will not divulge to anyone any information received from that potential witness in the course of preliminary immunity discussions. As a pragmatic matter, this would effectively preclude the use of such information by law enforcement agencies. addition, even if for some unforseeable reason a law enforcement agency should learn of the existence of such information and attempt to obtain it from the Committee or its staff by subpoena, as a matter of law, two independent principles would forestall an agency's use of that information in a criminal proceeding brought against the party who had furnished it. First, the Speech and Debate Clause of the Constitution would enable a Member or a staff employee to avoid complying with the subpoena and testifying. That clause provides that "for any Speech or Debate in either House, they Members of Congress/ shall not be questioned in any other place." Art I, § 6, Cl. 1. The Clause was designed to avoid external interference with the legislative process by "prevent/ing/ intimidation of legislators by the Executive and accountability before a possibly hostile Gravel v. United States, 408 U.S. 606, 617 judiciary". (1972). The privilege granted by this provision covers any Congressional actions that fall within the "sphere of legitimate legislative activity." Doe v. McMillan, 412 U.S. 306, 312-313 (1973); Gravel v. United States, 408 U.S. 606, 616 (1972). Moreover, this coverage extends "not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself." Gravel, supra. at 618. See also Eastland v. United States Servicemen's Fund, 421 U.S. 491, 507 (1973). It has been recognized that Congressional committees must often conduct investigations and gather information in order to formulate effective legislation. McGrain v. Daugherty, 273 U.S. 135 (1927). Thus, the gathering of information by the Select Committee and the preliminary immunity negotiations conducted by staff counsel as a necessary step in acquiring that information fall within "the sphere of legitimate legislative activity." See United States v. Dowdy, 479 F.2d 213 (4th Cir. 1973). As such, the legislative privilege would prevent federal or state law enforcement agencies from interfering with the legislative investigative process by compelling Committee Members or staff to reveal the preliminary phases or the product of their immunity discussions with a potential witness. Second, the Fifth Amendment privilege against selfincrimination would bar any prosecutorial use of information obtained in immunity discussions with the government where the government ultimately fails to grant immunity to the potential witness. The Fifth Amendment commands that no person "shall be compelled in any criminal case to be a witness against himself," To satisfy this mandate, a confession to a government agent must be voluntary, Garrity v. New Jersey, 385 U.S. 493 (1967); it cannot be obtained by any direct or implied promises, however slight, Bram v. United States, 168 U.S. 532 (1897). enforcement agent extracts a statement from a potential witness by promising the witness immunity, and the government fails to provide that immunity, the statement is deemed to be involuntary and may not be used against the person from whom it was so elicited. Smith v. United States Where a law 348 U.S. 147 (1954); United States v. Shotwell Mfg. Co., 371 U.S. 341 (1963). Similarly, when a statement would not have been given to a Congressional committee but for the committee's promise to furnish immunity, and that immunity is not forthcoming, the federal government would be estopped from then using the statement to prosecute the person from whom it was extracted. See Santobello v. New York, 404 U.S. 257 (1971) (prosecutor makes promise to defendant as part of plea bargain; prosecutor's successor reneges on bargain on ground that promise had been made by government agent other than himself; successor estopped from ignoring promise made by other government agent). The same rule would apply to use of the statement in a criminal prosecution by state authorities, since to permit the states to accomplish precisely what the federal government is estopped from doing would render an individual's Fifth Amendment protection nugutory. See Malloy v. Hogan, 378 U.S. 1 (1964) and Murphy v. Waterfront Commission, 378 U.S. 52 (1964). Both the Speech and Debate Clause and the Fifth Amendment itself assure, therefore, that, as a matter of law, no statement obtained in the preliminary immunity negotiations outlined in the attached letter could be used in a criminal proceeding against the party who provided the statement in the event that the Committee does not grant the potential witness use immunity. AGREEMENT BETWEEN IMMUNIZED WITNESS AND THE SELECT COMMITTEE ON ASSASSINATIONS I. Promises of Select Committee on Assassinations A. Immunity I understand that I am to receive a grant of immunity obtained for me by the Select Committee on Assassinations under 18 U.S.c. §§ 6002 and 6005, which provide that any statements I make in my testimony before the Select Committee cannot be used against me, either directly or indirectly, in any criminal prosecution, except a prosecution for perjury, giving a false statement or otherwise failing to comply with the court's immunity order. I also understand, however, that any statements I make subsequent to my testimony before the Select Committee, whether in public or in any other proceeding, may still be used against me in a criminal proceeding. Petition for Coverage Under Federal Witness Protection Program B. I further understand that, upon my written application containing an adequate showing that my willingness to testify would place my life or person, or the life or person of a member of my family, in jeopardy, the Select Committee will make a formal request to the Attorney General that protective measures be taken in my behalf under the Federal Witness Protection Program, Title V of the Organized Crime Control Act, §§ 501-503. 42-793 O-79-14 |