Saturday, May 12, 2007
The United States District Court for the District of Columbia issued an order of immunity (here) for Monica Goodling, former White House liaison for Attorney General Alberto Gonzales. Once she is subpoenaed to appear before the House Judiciary Committee and formally asserts her Fifth Amendment privilege, the order will be served on her and she must comply. Contrary to what some media reports imply, however, an order of immunity under 18 U.S.C. Sec. 6005 does not mean she cannot be prosecuted, or cannot be charged with any crimes for things she testifies about. That type of immunity is called "transactional" immunity, and is rarely given in federal criminal investigations, although it was the type of immunity grant provided to Monica Lewinsky during the Independent Counsel's investigation.
The form of immunity authorized by the statute is "use/fruits" immunity, and pursuant to the Supreme Court's decision in Kastigar v. United States, 406 U.S. 441 (1972), the government is prohibited from using the testimony itself or any information derived from the testimony to prosecute the immunized witness. If it does prosecute the immunized witness, it must meet a "heavy burden" of showing that all evidence was derived from sources unconnected to the testimony and the fruits of the statements. While it is very difficult to prosecute an immunized witness, it is not legally impossible. That said, given the wide publicity Goodling's testimony is likely to receive, in fact it will be almost impossible to pursue charges for her role in the U.S. Attorneys firings, and perhaps on the issue of using political criteria to hire Assistant U.S. Attorneys -- think Ollie North on this one. The next step will be scheduling a hearing for Goodling to testify and issuing her a subpoena to compel her appearance. (ph)