Right and Huang

How to prevent an Oliver North-style escape.

In the matter of John Huang, Sen. Fred Thompson says he wants the Truth, Attorney General Janet Reno says she wants Justice, and the Fifth Amendment—as now construed by courts—says we cannot have both.

Thompson is holding public hearings on issues of the highest moment. Are current campaign-finance laws strong enough? Are the Communist Chinese plotting to infiltrate American politics? To do his job well, he needs facts. Thompson believes that Huang has some of those facts, and so Thompson wants to subpoena Huang.

Reno also wants to do the right thing. Her job is to make sure that those who break the law are prosecuted and convicted. To do her job well, Reno needs to complete her investigation of the Huang affair. Then, if the facts warrant, she can commence criminal prosecution and see Justice done.

But current interpretations of the Fifth Amendment mean that Thompson can’t get the Truth while Reno gets Justice. If the senator subpoenas Huang, Huang can take the Fifth. The Senate can overcome the Fifth only by giving Huang a certain kind of “immunity.” Under current case law, this immunity would mean that, if Reno ever tried to prosecute Huang, neither Huang’s Senate testimony nor any evidence it led to—”fruits”—could be used against him. And the prosecution would bear a heavy burden of proving that nothing in its case is fruity. When Congress holds public hearings, especially hearings that are extensively reported and broadcast, it is almost impossible to prove that the criminal case was utterly untouched. Thus, after Oliver North was duly convicted, appellate judges sprang him because some of the trial witnesses had seen North on TV.

Did the Framers, then, contradict themselves? The Senate apparently cannot do its job without interfering with the executive’s ability to do its job. And worse: By conferring immunity on Huang, a single committee of a single house would in effect be usurping the power of the pardon, which the Framers gave to the president, not the Senate. If the legislative veto is unconstitutional, why isn’t the legislative pardon? If a Senate committee can pardon, why not a committee of any state legislature? But then, states could in effect nullify federal prosecution!

B efore we give up on the Framers, we should reconsider the words of the Fifth Amendment: “No person … shall be compelled in any criminal case to be a witness against himself.” If Pathfinder were to show this text to friendly Martians, they might wonder what on earth this text has to do with the Thompson hearings. Perhaps Thompson wants to “compel” Huang to be a “witness” against himself, but Senate hearings are obviously not a “criminal case.”

Our Martians would be right. Of course, we must go beyond the Martian-English dictionary test: Otherwise, we might insist that the First Amendment doesn’t apply to handwritten letters since they are not oral “speech” or the product of a printing “press.” We must consider the purpose of the Fifth in order to decide whether the Senate must give John Huang immunity before it can question him and, if so, what kind of immunity.

There are four basic options: 1) total “transactional” immunity from all prosecution; 2) Oliver North-style “fruits” immunity (in practice this often amounts to total transactional immunity, since it is impossible for the prosecution to prove that no evidence or testimony was derived in any indirect way from the hearings); 3) “testimonial” immunity—keeping Huang’s actual Senate testimony, but not any “fruits” of that testimony, out of the criminal trial; or 4) no immunity at all, allowing Reno to play a videotape of Huang’s Senate testimony to the jury. Courts today support Option 2, but the correct answer is Option 3.

The point of the Fifth Amendment is not to pit Truth against Justice, but to protect both. The Fifth excludes a defendant’s compelled testimony because this testimony might be unreliable: Even an innocent and truthful defendant might be made to look guilty on the stand. He might stutter, or become confused, or be trapped by a clever prosecutor. We let a criminal defendant take the Fifth to protect the innocent from erroneous conviction.

The same unfair treatment of an innocent person could occur if compelled Senate testimony could be played back, by videotape or transcript, to a criminal jury. But as long as the testimony itself is excluded, the Fifth Amendment is satisfiedHuang will never become an involuntary witness against himself in a criminal case. Providing physical evidence, though, is a far different matter from witnessing against oneself. For example, government can lawfully compel a defendant to give a blood sample even though it can’t compel him to take the stand; so said the Supreme Court in the landmark 1965 Schmerber vs. California decision. But, if Schmerber is right, then fruits of testimony should be admissible, and for the same reasons: Fruit, too, is not the same as witnessing. Government should be able to compel a defendant to produce not only his blood but also any bloody knives he might happen to have.

This analysis would startle most defense lawyers today, but it shouldn’t. The Fifth Amendment derives from England, and the English rule for immunity is Option 3. In America, when immunity statutes first popped up, most courts embraced Option 3. This option would allow Thompson to do his job without preventing Reno from doing hers. It would prevent the Senate from usurping the pardon power, and would prevent states from nullifying federal prosecutions. Most important, it affirms both Truth and Justice.