The special prosecutor was convinced that Congress was on the verge of sabotaging his politically charged investigation—one that led straight into the White House and threatened to end with a president’s impeachment. And so he went to lawmakers on Capitol Hill with a plea: Do not grant immunity to witnesses in exchange for their testimony if you ever want anyone brought to justice.
But the plea failed. And the special prosecutor, Lawrence Walsh, a former federal judge appointed in 1986 to investigate the Iran-contra affair during the Reagan administration, watched two of his highest-profile targets go free: former National Security Adviser John M. Poindexter and Poindexter’s deputy, Lieutenant Colonel Oliver North. Although both former Ronald Reagan aides were later convicted at trial of multiple felonies, the convictions were overturned, with appeals courts deeming the prosecutions tainted as a result of the testimony the men had given to Congress with grants of supposedly limited immunity.
The “fiasco on Capitol Hill,” as Walsh put it in his memoirs, left him bitter years later. The experience convinced him that whenever Congress grants immunity to witnesses for their testimony in highly publicized investigations, it forever ends a prosecutor’s hope of bringing the witnesses to trial for their alleged crimes. “The Capitol Hill steamroller had flattened the criminal investigation,” he would write.
Three decades later, this episode offers some important lessons. Congress and a special prosecutor may be heading for a similar showdown over allegations of collusion in the 2016 presidential election between Donald Trump’s presidential campaign and the Russian government, and several veteran prosecutors and legal scholars I’ve spoken with recently have warned that Congress could undermine any hopes of bringing senior Trump aides and advisers to justice if it starts granting immunity to witnesses.
They say they expect that the newly appointed Trump-Russia special prosecutor, former FBI Director Robert Mueller, will—like Walsh 31 years ago—make an early request to Congress to hold off on immunity, even if that means curtailing the congressional inquiries dramatically by foregoing public hearings. The Republican leaders of House and Senate committees investigating the Trump-Russia issue have said they have no intention of offering immunity for now, but will they be tempted later if there is no other way to obtain information and the lawmakers are desperate to show progress?
The impasse could come sooner than Mueller might have hoped. A Washington criminal defense lawyer who is representing a key figure in the Trump-Russia investigation, speaking on condition of anonymity, told Politico Magazine last week that a number of witnesses connected to the Trump campaign who had previously offered to testify before Congress voluntarily, without precondition, are seriously considering whether to withdraw the offer and insist on immunity.
“With the appointment of Mueller, this investigation got a lot more real for everyone,” the lawyer said. “Why would you send clients up to Congress now and let them get caught up in a perjury trap over what could be a minor issue?” The lawyer would not identify which witnesses might withdraw their pledge to testify voluntarily, but among the Trump advisers who have previously offered to cooperate fully with Congress are Jared Kushner, the president’s son-in-law and a top White House adviser; former Trump campaign manager Paul Manafort; and campaign advisers Roger Stone and Carter Page.
Several news organizations reported last week that Kushner, in particular, has become a focus of the FBI investigation, which reports to Mueller, who is now in the second week of his investigation. After the revelation, Kushner’s lawyer, Jamie Gorelick, said in a statement that her client’s vow to cooperate with Congress had not changed. “Mr. Kushner previously volunteered to share with Congress what he knows,” she said. “He will do the same if he is contacted in connection with any other inquiry.”
The question of congressional immunity became a public matter in March, when Trump’s first national security adviser, Michael Flynn, who is also a focus of the FBI’s investigation, offered to testify before congressional committees but only if given immunity. Flynn’s lawyer made a tantalizing promise that his client “certainly has a story to tell—and he very much wants to tell it.”
In a tweet the next day, Trump—who fired Flynn in February for lying about his contacts with the Russians but has continued to offer him public support—said his short-lived national security adviser was right to make the request: “Mike Flynn should ask for immunity in that this is a witch hunt (excuse for big election loss), by media & Dems, of historic proportion!”
So far, the only other figure in the investigation known to have requested congressional immunity is Oleg V. Deripaska, a Russian aluminum magnate who did business with Manafort in the mid-2000s, when Manafort offered campaign advice to Ukrainian politicians seen as supportive Russian leader Vladimir Putin. Congressional investigators have said they are trying to determine if Manafort became a conduit between the Trump campaign and Russia, a suggestion that the veteran Washington lobbyist has denied. The New York Times reported Friday that congressional investigators had, for now, declined an offer by Deripaska to cooperate with Congress if given immunity in the House and Senate investigations.
The sequence of events involving Flynn—a request for congressional immunity, with the endorsement of the president—was familiar to students of the Iran-contra affair. Back then, the White House urged Congress to give immunity to North and Poindexter in exchange for testimony about revelations that the Reagan administration had overseen an illegal, and seemingly harebrained, scheme to sell arms to Iran, with the proceeds used to fund anti-communist guerrillas in Central America. After receiving immunity, North and Poindexter, in their testimony, went on to largely exonerate President Reagan and other senior officials of involvement in the scandal.
Faced with witnesses who assert their Fifth Amendment rights against self-incrimination, Congress can still force them to testify by granting them limited so-called “use” immunity, with the understanding that prosecutors cannot use the testimony—or any leads from the testimony—in bringing criminal charges against the witness. Congress has only rarely granted immunity for testimony. Under a law that dates from the 1950s, such a grant requires a majority vote in either the full House or Senate or a two-thirds majority of a congressional committee. The last high-profile investigation in which Congress granted immunity to a witness was in 2007, when a House panel did so for to a Justice Department official who went on to testify about the firing of eight U.S. attorneys by George W. Bush administration.
After the Iran-contra investigation was over, Walsh said he determined that while congressional immunity was supposed to be limited and leave open the possibility of bringing criminal charges against witnesses in high-profile investigations, the truth was that witnesses who had immunity could effectively never be prosecuted, since it was impossible to show that their congressional testimony had no effect on a prosecutor’s case. In his investigation, Walsh wrote in his 1997 memoirs, he came to see the White House request for immunity for North and Poindexter as a cynical ploy to avoid public scrutiny of more senior officials in the White House, including the president, and make the two former aides into “scapegoats” for the scandal. “Congress had destroyed the most effect lines of inquiry by giving immunity to Oliver North and John Poindexter so that they could exculpate and eliminate the need for the testimony of President Reagan,” he said.
North’s and Poindexter’s convictions were overturned despite what Walsh said were intensive efforts to shield his staff and grand jurors from any knowledge of what the two men had said in their congressional testimony. Walsh said that, throughout his investigation, he and his colleagues only read newspaper articles that referred to the Iran-contra affair after “they had been censored to blot out references to immunized testimony,” and that they were all under orders “to turn the sound off” when television and radio broadcasts referred to North or Poindexter.
It would not be a surprise if other Trump advisers, beyond Flynn, now come forward to demand immunity in exchange for testimony, Alex Whiting, a Harvard Law School professor who specializes in criminal prosecution issues, told me—especially, Whiting says, because Mueller, by reputation, seems likely to conduct an aggressive criminal investigation that could last for years. “The shift into a criminal investigation could definitely make a difference,” Whiting says. “As more people get lawyers, the advice of the lawyers is always going to be to stay quiet and try to get immunity for yourself.”
Still, Whiting says, he thinks Republican leaders who control both the House and Senate might ultimately make a political calculation and decide against granting immunity to prominent Trump advisers and friends like Flynn; that would allow Congress to avoid the spectacle of televised public testimony on Capitol Hill that would only draw more attention to fast-moving scandal in a Republican White House. Instead, the congressional committees could leave the investigation largely in Mueller’s hands and defer all questions to him. “I think that the Republicans would be happy to let this drag along quietly without them making any news at all,” Whiting says.
If that becomes the GOP strategy, Trump’s aides and advisers could be in trouble. If any of them are accused of crimes, without immunity they will be much more likely to find themselves at trial—and maybe even behind bars.