The Immunity Game

This week Federal Judge John J. Sirica will hold hearings and issue a ruling on one of the most important tactical questions of the entire Watergate investigation: Should former White House Counsel John W. Dean III be granted immunity from prosecution in exchange for his uninhibited testimony about who organized the affair and who tried to cover it up?

Such grants of immunity raise embarrassing moral questions, since they permit a wrongdoer to escape punishment by the simple expedient of informing on his associates. Yet legal authorities have traditionally accepted the pragmatic necessity of letting one possible criminal go free in order to catch and convict others, and the idea was formally put into law by the British Parliament in 1710. In the U.S., immunity was often granted unofficially or by various local laws, and the Supreme Court in 1896 gave its first complete approval to a federal immunity statute. The underlying legal theory is that when a witness is given immunity from prosecution, he cannot incriminate himself; therefore he cannot invoke the Fifth Amendment guarantee against selfincrimination, and he must talk or face a prison sentence for contempt.

Immunity was not a standard tool, however, and it was rarely applied to major criminals in major cases. This was partly because immunity was not legally available in the majority of criminal investigations. In addition, most immunity statutes barred prosecution for any "transaction, matter or thing" referred Jo in the testimony; so there was always .the possibility that a witness would take an "immunity bath" by mentioning every crime he had ever committed.

In 1965 federal prosecutors began to discover new potentials in the granting of immunity. Instead of being used as a dispensation to petty hoodlums in the hope of getting them to testify against their leaders, it could be used against the leaders themselves. Immunity was forced, for example, on Chicago Mob Boss Sam Giancana, against whom it had been impossible to get any criminal conviction. When Giancana still refused to talk to a grand jury, he had to spend a year in prison for contempt until the grand jury expired.

Interested in this use of the weapon, the incoming Nixon Administration favored a toughened version of immunity "to strike at the leadership of organized crime." Its 1970 Organized Crime Control Act, which John Dean helped draft, made the practice uniformly applicable in the investigation of any federal crime. The law also extended a full-fledged, formal power to grant immunity to congressional committees for the first time. Finally, and most controversially, the act dropped from federal law the traditional "transactional" immunity, which gave complete protection from any prosecution, and substituted "use" immunity, which v meant only that a witness could not be prosecuted on the basis of his own specific testimony or evidence developed as a result of it. Civil libertarians howled, but the Supreme Court last year upheld the Government's right to prosecute such a witness provided that the prosecution could prove that it was using evidence discovered without any help from the testimony that the witness had been forced to give.

Unique Position. Senator Sam Ervin's Watergate committee has already agreed to request use immunity for ten witnesses, but the Dean situation is without any real precedent. No White House official has ever been asked to testify against other White House officials. Equally without precedent is the three-way tug-of-war between the prosecutors, the congressional investigators and the witness himself.

Dean argues that he should receive full immunity from all prosecution, because, as the President's former counsel, he is in a unique position to testify about a broad range of top-level White House activities, and he is the only top official who has expressed willingness to stand up and accuse other insiders --including the President. In addition, he claims credit for having volunteered early cooperation with prosecutors and causing the disclosure of such key incidents as the raid on the office of Daniel Ellsberg's psychiatrist and the destruction of documents by FBI Chief L. Patrick Gray.

Under the new law the Ervin committee is able to offer only use immunity, which, once approved by Judge Sirica, can be imposed on Dean whenever the committee chooses. But to testify with such limited protection, says a Dean friend, would be like going before the committee "with his fanny showing." Actually, full immunity is available under old laws until they expire in 1974, and the Attorney General could authorize it if he wished. But so far, the prosecutors have offered only to let Dean plead guilty to one count of obstruction of justice, with the likelihood of a suspended sentence if he proves to be a cooperative witness. Dean is said to have refused such a deal. His reasons: It would involve an admission of guilt, and confession to a felony would probably result in his being banned from the practice of law.

Strong Case. The Justice Department is unlikely to grant Dean full immunity because, says one official, "giving immunity to John Dean would be like turning loose the man with the gun in a bank robbery." Prosecutors feel that they have a strong criminal case against him, and that the threat of a heavy sentence if he is convicted should be enough to pressure him into being a cooperative witness.

The prosecutors face another problem, though. If Dean testifies fully before the Ervin committee, they will have a difficult time proving in any subsequent trial that they are using absolutely nothing growing out of protected statements. They would like to solve that problem by putting off the Senate hearing. They also might choose to indict Dean before the Ervin committee even calls him as a witness. Ervin is known to be against calling anyone who has been indicted. But Dean, who has not said what he would do if granted only use immunity, has threatened to clam up completely if even one indictment is filed against him.

Beneath all the complexities, the basic conflict is clear. Dean holds out the promise of answers to some important questions: 1) How much did President Nixon know about the coverup, and how widely did it really range? 2) What other officials were involved? 3) What other instances of political espionage took place? and 4) What is contained in the secret papers he took from the White House and what light can be shed on their meaning? The prosecutors, on the other hand, doubt that he really has all the answers he promises and is exaggerating to improve his bargaining position.

The game being played is tantalizing and extremely tense, full of bluffs and hidden cards. No one even knows exactly what the stakes are, only that they are enormously high.

* Three weeks ago. G. Gordon Liddy was disbarred in New York, the first of the many lawyers involved in the case to be so disciplined.

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