By Christopher Dunn
With a parade of people connected to President Trump—family members, former administration officials, and campaign aides—facing the prospect of marching to Capitol Hill to testify about potentially treasonous dealings with the Russian government, the issues of compelled testimony and immunity are likely to become prominent in the coming weeks and months.
Disputes about the standards governing the interaction between the Fifth Amendment’s protection against compelled testimony and statutes compelling witness testimony were settled in the aftermath of the Communist “witch hunts”—a term President Trump ironically invoked last week—of the 1950s, but the burgeoning contemporary Russia investigations provide a good opportunity to review those standards and the history behind them, which implicate some of our most fundamental constitutional values.
The U.S. Supreme Court’s jurisprudence involving the Fifth Amendment, compelled testimony, and immunity has revolved around three basic positions.
First is the most protective one, which holds that the Fifth Amendment absolutely bars any and all compelled testimony that implicates criminal activity, a position that renders the notion of immunity irrelevant, as that arises only with respect to testimony that is given.
Second is the position that, to the extent the Fifth Amendment allows compelled testimony about a criminal matter, the witness must be given absolute immunity from any prosecution for that matter, which is referred to as “transactional” immunity.
The third and least protective position is that a person can be compelled to testify about a criminal matter and is shielded only from the use of that testimony or the use of evidence connected to it, which is referred to as “use immunity.”
A Complete Bar?
Derived from abusive interrogations practices (including torture), the Fifth Amendment’s text about compelled testimony is succinct: “No person shall be … compelled in any criminal case to be a witness against himself … .”
The threshold questions presented by this provision are whether it categorically bars all compelled testimony connected to criminal matters and whether it is limited to self-incrimination or extends to other serious harms that might follow from compelled testimony. The Supreme Court answered these questions definitively at the height of the Red Scare of the 1950s but first confronted them in 1896.
In Brown v. Walker , 161 U.S. 591 (1896), the court split 5-4 over the claim of a railroad auditor that the Fifth Amendment completely barred the government from compelling him to testify before a grand jury investigating criminal conduct, even if he was granted full immunity from any future related prosecution (transactional immunity).
The majority noted that “[t]he clause of the constitution in question is obviously susceptible of two interpretations” but rejected the more expansive one and held that the Fifth Amendment’s purpose was satisfied if the compelled witness were left free of any threat of criminal prosecution.
And in so concluding, the court forcefully rejected the proposition that the amendment also protected witnesses from serious non-prosecution harms that might flow from their testimony: “The design of the constitutional privilege is not to aid the witness in vindicating his character, but to protect him against being compelled to furnish evidence to convict him of a criminal charge.”
The majority’s narrow reading of the Fifth Amendment drew two sharp dissents. Three Justices asserted that “[i]t is too obvious to require argument that when the people of the United States, in the fifth amendment to the constitution, declared that no person should be compelled in any criminal case to be a witness against himself, it was their intention, not merely that every person should have such immunity, but that his right thereto should not be divested or impaired by any act of congress.” A fourth Justice went even further and contended that “[t]he amendment also protects him from all compulsory testimony which would expose him to infamy and disgrace, though the facts disclosed might not lead to a criminal prosecution.”
The concern about compelled infamy had particular resonance when the Supreme Court revisited this issue in 1956, at a time when people from all walks of life faced prosecution and persecution for their alleged connections to the Communist Party. At issue in Ullman v. United States , 350 U.S. 422 (1956) was the imprisonment of a suspected member of the Communist Party who had refused to answer grand jury questions about alleged espionage. The court agreed to review the case in part to consider whether it should distinguish or overrule Brown v. Walker in light of the Communist purge.
As in Brown, the issue of whether the Fifth Amendment conferred an absolute bar on compelled testimony split the Court. The majority recognized the paramount importance and historical basis for protections against compelled testimony in criminal matters:
No doubt the constitutional privilege may, on occasion, save a guilty man from his just deserts. It was aimed at a more far-reaching evil—a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. Having had much experience with a tendency in human nature to abuse power, the Founders sought to close the doors against like future abuses by law-enforcing agencies.
The court also emphasized the importance of not discounting certain constitutional guarantees in the name of perceived threats to national security, referring expressly to the crackdown on dissent during World War I—”a time there was also manifest impatience with some of the restrictions of the Constitution on the presumed interest of security.” Notwithstanding this, the Supreme Court refused to revisit its holding in Brown that the Fifth Amendment was fully satisfied so long as the witness was given transactional immunity.
Notably, this reaffirmance of the narrow reading of the Fifth Amendment garnered dissent from only Justice William Douglas and Justice Hugo Black. They argued that transactional immunity was insufficient because it did not protect the witness from the threat of prosecution for other offenses, because it disregarded the Fifth Amendment’s role as “a safeguard of conscience and human dignity and freedom of expression,” and because it failed to protect a person from the “infamy and disgrace” that can follow from compelled testimony. On this last point, the dissenting Justices observed,
The disclosure that a person is a Communist practically excommunicates him from society … . When public opinion casts a person into the outer darkness, as happens today when a person is exposed as a Communist, the government brings infamy on the head of the witness when it compels disclosure. This is precisely what the Fifth Amendment prohibits.
Between Brown and Ullman, the law is settled: The Fifth Amendment allows compelled testimony in criminal matters and requires immunity not from non-criminal consequences of that compelled testimony but only from prosecutorial consequences. What those cases did not resolve, however, is the scope of that required prosecutorial immunity, something that changed dramatically over the last 125 years.
Transactional or Use Immunity?
Shortly before its 1896 decision in Brown v. Walker rejecting the claim that the Fifth Amendment barred all compelled testimony, the Supreme Court issued a seminal ruling about the scope of immunity that must be granted whenever testimony is compelled in criminal matters. At issue in Counselman v. Hitchcock , 142 U.S. 547 (1892) was the imprisonment on contempt of a railroad employee who invoked the Fifth Amendment in refusing to answer questions of a grand jury investigating potential criminal violations of the Interstate Commerce Act. The federal statute under which he was compelled to testify offered a limited form of use immunity that barred only the use of his actual testimony.
The Supreme Court held that this immunity was insufficient under the Fifth Amendment because it did not extend to the use of information and evidence derived from the witness’ testimony. And in concluding its analysis, the court expressly endorsed the idea that the Fifth Amendment required full transactional immunity:
We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him can have the effect of supplanting the privilege conferred by the constitution of the United States … . In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.
Shortly after Counselman was decided, Congress enacted the Compulsory Testimony Act of 1893 and granted full transactional immunity to persons compelled to testify about criminal matters, meaning that anyone forced to testify was protected from any future prosecution on the same matter. This transactional immunity regime remained in place for nearly 80 years until 1970, when Congress amended the statute and narrowed its immunity to a form of use immunity, barring the use of “testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information).” 18 U.S.C. §6002 (emphasis added). The revised statute was immediately challenged and arrived in the Supreme Court in 1972.
In Kastigar v. United States , 406 U.S. 441 (1972), a seven-member-court (Justices William Rehnquist and William Brennan recused themselves) squarely rejected the contention that the Fifth Amendment requires a conferral of transactional immunity:
Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot be subsequently prosecuted. Its sole concern is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to criminal acts.
As for Counselman‘s declaration that “[i]n view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution,” the Supreme Court summarily dismissed it as “unnecessary to the Court’s decision, and cannot be considered binding authority.”
Two Justices dissented, with Justice Thurgood Marshall arguing that a ban on the use of information and evidence indirectly resulting from compelled testimony was insufficient because it relied on the good faith of prosecutors and ignored the fact that even prosecutors acting honorably might be unaware of connections between compelled testimony and evidence that later surfaced from the “long and winding” paths of the “investigative bureaucracy.” In response to these concerns, the majority imposed upon prosecutors in any criminal prosecution of a person who had been compelled to testify the burden of establishing that any evidence used against the person “is derived from a legitimate source wholly independent of the compelled testimony.”
The regime established by Ullman and Kastigar remains in effect to this day. As construed by the Supreme Court, the Fifth Amendment does not categorically bar compelled testimony relating to criminal matters and instead allows the government to force people to testify. And the transactional-immunity regime that existed for 80 years has been replaced by a far narrower form of use immunity, which bars the use of the compelled testimony and any other evidence that directly or indirectly results from the compelled testimony, with the government bearing the burden of establishing an independent source of that evidence. Finally, compelled testimony that might cause grievous harm to the witness short of criminal prosecution is entirely outside the Fifth Amendment.
This regime may become the focus of considerable attention as Jared Kushner, Michael Flynn, Paul Manafort, Roger Stone, and others connected to the President are considered as witnesses in the ongoing Russian probes. They can be compelled to testify and accorded only use immunity, something that may please those interested in getting to the bottom of the Trump campaign’s dealings with the Russian government. On the other hand, compelled testimony with that immunity will highlight how narrowly the Supreme Court has chosen to interpret the Fifth Amendment.
Christopher Dunn is the associate legal director of the New York Civil Liberties Union.
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