whenever, in the judgment of such person or persons, the witness has asserted or is likely to assert his privilege against self-incrimination and his testimony or other information is or will be necessary to the public interest, but no sooner than ten days after service of notice upon the Attorney General of an intention to do so.

Section (4). Immunity Before Congress

(a) When the testimony or other information is to be presented to either House or a committee of either House or a joint committee of both Houses of Congress, the direction to the witness to testify or produce other information shall be issued by a United States District Court, upon application therefor by a duly authorized representative of the House or committee concerned, and subject to the requirements of this section.

(b) Before issuing the direction, the court must find that application was authorized, in the case of proceedings before one of the Houses of Congress, by affirmative vote of a majority of the members present of that House, or in the case of proceedings before a committee, by affirmative vote of two-thirds of the members of the full committee.

(c) Notice of the application for issuance of the direction shall be served upon the Attorney General at least ten days prior to the date when the application is made. Upon request of the Attorney General, the court shall defer issuance of the direction for not longer than thirty days from the date of such notice to the Attorney General.

COMMENT ON IMMUNITY PROVISIONS

I. ESSENTIAL ELEMENTS IN PROPOSED IMMUNITY REFORMS

The immunity statutes proposed here, unlike other reforms presently being undertaken by the Commission, consist solely of procedural provisions. Initially immunity problems were considered relevant to the drafting of a substantive code because under most existing federal immunity laws a grant of immunity constitutes a defense to prosecution. But as the proposed reform took shape, it came to reflect the view that immunity need not be a defense but only a ground for suppressing the use of evidence. This reform is nevertheless an appropriate part of the Commission's proposals, not only because of the need to implement the recommendation that immunity no longer be a defense but also to accommodate explicit requests from the Judicial Conference and the Department of Justice that the Commission undertake reform in this area.

The reforms which these provisions would accomplish are as follows:

(1) in place of the multitude of existing federal immunity statutes, all of which depend upon the nature of the inquiry and some of which, in addition, specify who may authorize immunity and in what proceedings, there would be substituted standard provisions keyed only to the proceeding in which immunity is to be conferred: court or grand jury, formal administrative, or Congressional;

(2) the immunity conferred would be confined to the scope required by the Fifth Amendment as interpreted by the Supreme Court-that is, prohibition of use of the information obtained and its fruits-thus permitting prosecution on untainted evidence;

(3) assertion of the privilege would be required in all instances, thus preventing an unwitting, automatic grant of immunity as may presently occur under some existing federal statutes;

(4) in order to avoid unnecessary rituals, e.g., taking the witness, whose attorney has worked out an immunity grant with the United States Attorney, first before the grand jury, then to the court to direct him to answer, then back to the grand jury, the court (or other competent authority) would be able to issue the direction to answer in advance, contingent upon assertion of the privilege;

(5) the power of Congress to apply for immunity would extend to any matter within its authority, rather than being limited, as at present, to national security matters;

(6) the role of the various branches of government would be clarified, / at the same time that constitutional conflicts would be avoided, e.g., requiring timely notice to the Attorney General of an intended immunity grant by Congress or an independent regulatory agency but not his approval, thus allowing him time to "lobby" for a change of mind;

(7) a standard immunity provision for administrative proceedings would be available so that whenever Congress wants to confer authority to grant immunity on any department or agency, it need only decide who should have the authority under the standard provision;

(8) the requirement in all three types of proceedings that the Attorney General receive notice of intent to obtain an immunity authorization will give him an opportunity to insulate from the immunity grant any incriminating data already in his files prior to the witness' testimony. One comment on terminology should be added. It has been customary to refer to the statutes being affected by the proposed reforms as "immunity statutes" or "compulsory testimony acts." For the sake of continuity the term “immunity" has been retained in the above brief description, in the proposed new statutes themselves, and in the commentary which follows. However, the basic concept of "immunity" has been changed. As noted in point 2 above, part of the reformin the spirit of the Fifth Amendment and recent Supreme Court cases-is to substitute a "use-restriction" rule for the present absolute immunity rule which bars prosecution even on independent evidence. Hence, in the proposed new statutes and commentary on them the word "immunity" means "immunity" from having one's testimony or its fruits used against him in a criminal case.

Although it is not a reform, one additional feature should be noted at the outset for the sake of clarity: the immunity protection safeguards state use in a criminal case of federally compelled information as well as federal use. It has been clear since 1954 that a generally worded federal immunity statute prevents state use of the compelled testimony by virtue of the supremacy clause; and the new theory of the Fifth Amendment announced by the Court in 1964 achieves this result by operation of the Fifth Amendment itself.

II. EXISTING IMMUNITY LEGISLATION: HISTORY AND ANALYSIS

1. The Congressional Investigation Immunity Statutes From 1857 to the Present (a) The Beginnings of Federal Immunity Legislation

The initial congressional investigation immunity statute-which also was the first federal immunity statute of any type-was enacted in support of an investigation of charges that members of Congress were extorting money from private persons interested in certain legislation. Its formula for immunity probably was adequate to satisfy constitutional requirements, but was phrased too loosely to preserve to the government the important discretion of whether or not to grant immunity. Witnesses could acquire immunity simply by testifying before a congressional committee. This 1857 act, confined to congressional proceedings, read in pertinent part as follows:

66 no person examined and testifying before either House of Congress, or any committee of either House, shall be held to answer criminally in any court of justice, or subject (sic) to any penalty or forfeiture for any act or fact touching which he shall be required to testify. . . ." [11 Stat. 155-156 (1857)].

Abuses in the form of "immunity baths" occurred and in 1862 Congress reacted by rewriting the statute in the form which it retained without much modification until replaced by the Immunity Act of 1954 (which is applicable only to national security investigations by Congress and by federal grand juries). As rewritten in 1862, the initial congressional immunity statute did attain the purpose of safeguarding against excessive immunity baths because only the actual "testimony" was immunized; the offense still could be prosecuted by using other evidence. This 1862 act, confined to congressional proceedings, read in pertinent as follows:

.. the testimony of a witness examined and testifying before either House of Congress, or any committee of either House of Congress, shall not be used as evidence in any criminal proceeding against such witness in any court of justice. . . ." [12 Stat. 333 (1862)].

However, this revised formula did not give protection equivalent to the Fifth Amendment's right of silence. In immunizing only the testimony the statute seemed to allow the prosecutors to use this testimony as a "lead" to other evidence, and left the witness in an exposed position. This point was the key issue in Counselman v. Hitchcock, 142 U.S. 547 (1892) under an analogous limited immunity statute of 1868, and the Supreme Court held the statute unconstitutional. Arguably, the Court would have been nearer to the true congressional intent, although inartistically expressed, if it had read both statutes as barring use of the fruits of the testimony as well as the testimony itself.

After the adverse decision in Counselman the Congress enacted in 1893, in aid of Interstate Commerce Act investigations by the Interstate Commerce Commission and by federal grand juries, an immunity statute whose broadly phrased formula gave absolute immunity. This 1893 act became the model for all later development. Its constitutionality was sustained in Brown v. Walker, 161 U.S. 591 (1896).

However, neither it nor any subsequent immunity statute down to 1954 applied to congressional investigations. The Court made it clear in 1964, in a ruling concerning the Antitrust Immunity Act of 1903, that immunity acts passed in support of particular regulatory programs did not extend to congressional investigations. United States v. Welden, 377 U.S. 95 (1964). Also, the old 1862 immunity statute regarding congressional investigations was by inference from the Counselman decision-ineffective to overcome a plea of the Fifth Amendment. If a witness did testify before a congressional committee, however, the 1862 statute could operate to bar state use of the testimony even though the testimony was not "privileged," that is, was not testimony which the witness had any constitutional basis for withholding. Adams v. Maryland, 347 U.S. 179 (1954).

(b) The 1954 Congressional Investigation Immunity Act

When Congress enacted the Immunity Act of 1954, the Congress obtained an immunity act which, for the first time since 1862, was worded broadly enough to overcome a plea of the Fifth Amendment. It was confined, however, to national security investigations, leaving the great bulk of congressional investigations unsupported by immunity provisions to this day.

Even as to national security investigations, the 1954 act contains some unresolved constitutional difficulties centering on the special procedure outlined for granting immunity. The 1954 act does not vest in congressional committees or even in Congress itself unconditional power to grant immunity in support of congressional fact-finding interests. Rather the act provided (1) that Congress should apply to a federal district court for an immunity order; (2) that Congress also must notify the Attorney General of its desire to immunize a recalcitrant witness; (3) that the Attorney General shall have an opportunity to be heard before the federal district court grants congressional request.

The congressional history indicates clearly that the provisions concerning notice to the Attorney General, an opportunity on his part to be heard, and a consequent court order as preconditions to a grant of immunity in a congressional proceeding, were the product of a fear on the part of some members of Congress that otherwise immunity baths would occur. There would be a possibility that grants of immunity made by Congress without consultation with the executive branch would interfere with the law enforcement activities of the executive branch. And, assuming the worst, there might even be collusion between the witness in need of immunity and a compliant congressional committee. No cases have been ruled on by the Supreme Court under this part of the Immunity Act of 1954. However, if the Act contemplates that the federal district court should settle the possible dispute between a House of Congress desiring to grant immunity in support of congressional interests, and an Attorney General request in support of executive interests that no immunity be granted, then a serious separation of powers problem is posed. Grants of immunity are not a matter of right or wrong. Rather they are the product of a calculation by the immunity granting agency that its need for the information overrides the public interest in prosecuting those witnesses whose conduct has made them possible defendants in a possible proceeding.

This is a "law enforcement bargain situation"-a naked policy judgment—in regard to which courts have no legal standards for judgment. Should the situation arise under the 1954 Act of a conflict between congressional and executive policy concerning granting immunity to a congressional witness the Court would have no basis under our separation of powers system for deciding whether to prefer the congressional policy or the executive policy. To date there has been no authoritative court interpretation of the operation or constitutionality of the congressional investigation portion of the Act. [For discussions of the 1954 act and the separation of powers problem see Dixon, "The Doctrine of Separation of Powers and Federal Immunity Statutes," 23 Geo. Wash. L. Rev. 501, 627, and espec. 640-646, 655-657 (1955); Wendel, "Compulsory Immunity Legislation and the Fifth Amendment Privilege: New Developments and New Confusion," 10 St. Louis U.L.J. 327, espec. at 353–367 (1966).]

It may be noted that the second part of the Immunity Act of 1954 contains an immunity provision applicable to federal grand jury proceedings in the area of national security, and it also requires a court order as a precondition of immunity. Before the court order can be obtained there must be a certification by the United States Attorney conducting the grand jury proceeding that immunity would be in the public interest, and approval by the Attorney General. In the leading case under this provision, Ullmann v. United States, 350 U.S. 422 (1956), the Supreme Court upheld the Act and rebutted the argument that the act violated separation of powers by imposing a nonjudicial function on the district court. Construing the statute narrowly, the Court said that under the terms of this grand jury provision a federal district court is not to exercise any independent judgment on the merits of granting immunity. It is simply to certify that the statuory requirement of a finding of public necessity has been made by the United States Attorney, and approved by the Attorney General.

If the congressional investigation provision of the Immunity Act of 1954 could be construed, by analogy to its grand jury provision, as only empowering the court to make an official recordation of the notice to the Attorney General and possible remonstrance by him, the act might then be constitutional on the theory that it vests in the court only a ministerial duty. However, this would seem to be a forced construction of the act. Although not expressly requiring Attorney General approval of a congressional grant of immunity, the act does expressly provide that the court shall give the Attorney General an "opportunity to be heard" before the court enters an order authorizing immunity. This unavoidably creates the possibility of an open conflict between the Attorney General and the Congress on an issue of policy rather than constitutional right--with the court placed squarely in the middle.

2. Administrative Inquiry and Court-Grand Jury Immunity Statutes, 1893 to Present

Although American immunity legislation begins with statutes enacted in support of congressional investigations, the first constitutional and enduring immunity language is that found in the 1893 act enacted in support of proceedings under the Interstate Commerce Act, whether handled administratively by the Interstate Commerce Commission or criminally by the Attorney General through grand jury process. As noted in Part II-1-(a) above on congressional investigation immunity statutes, the absolute immunity language of the 1893 special act became the "model" language which Congress incorporated in a series of additional special immunity acts, each enacted in support of a particular regulatory program. It reads as follows and was declared constitutional in Brown v. Walker, 161 U.S. 591 (1896):

"No person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements, and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the commission, whether such subpoena be signed or issued by one or more commissioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of chapter 1 of this title on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding: Provided, That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying."

Each of the Independent Regulatory Commissions is supported in its work by one or more special immunity acts, the practice being to incorporate immunity provisions in each of the several acts administered by an Independent Regulatory Commission, rather than to give each Commission one immunity provision covering the total range of its work. [See general list of immunity statutes in Appendix A.] For example, the Securities Exchange Commission administers the following acts, each containing an immunity provision: Securities Act of 1933, 15 USC 77v (c); Securities Exchange Act of 1934, 15 USC 78u(d); Public Utility Holding Company Act of 1935, 15 USC 79r (e); Investment Company Act of 1940, 15 USC 80A-41(d); Investment Advisers Act of 1940, 15 USC 80b-9(d).

Because of this practice of tying immunity provisions to statutes, rather than to agencies, some immunity provisions have dual applicability: in support of administrative regulatory proceedings under the statute; and in support of grand jury-court proceedings if the statute also contains a criminal penalty. Several regulatory programs, although popularly conceived as being administered primarily by an Independent Regulatory Commission, also contain criminal penalties which creates jurisdiction in the Attorney General to proceed by grand jury process. Indeed, the 1893 act itself is an example, in its first appearance before the Supreme Court in Brown v. Walker, 161 U.S. 591 (1896), in which its constitutionality was sustained. Passed in support of the Interstate Commerce Act, it created immunity power in proceedings before the Interstate Commerce Commission, and also in grand jury and court proceedings to enforce criminal penalties arising out of the Act. Brown involved not an Interstate Commerce Commission proceeding but rather a grand jury investigation of an alleged unlawful railroad rebate, in the course of which a railroad official pleaded the Fifth Amendment.

Until recent years the United States Attorneys and the Department of Justice did not have immunity statutes supportive of their general criminal law enforcement function, apart from their role in enforcing the "criminal kickers" attached to various economic regulation statutes. Since the Immunity Act of 1954, however, which authorized immunity power for the Department of Justice as well as Congressional Committees in the national security field, Congress has enacted a number of additional special immunity statutes supportive of various aspects of the criminal law enforcement function of the Department of Justice, e.g., the Consumer Protection Act of 1968, 18 USC 895; the Omnibus Crime Control and Safe Streets Act of 1968, 18 USC 2514; the Welfare and Pension Plans Disclosure Act, 18 USC 1954 (b); the Narcotics Control Act, 18 USC 1406.

The new immunity provisions in the Omnibus Crime Control Act come close to being a general immunity statute for the Department of Justice. In addition to covering investigations of the offense of unauthorized interception of communications, which apparently was the initial purpose for inserting the immunity provision, a cross-reference section (Section 2516) extends the immunity power to a long list of other federal criminal offenses. The most recent federal immunity provision is the one inserted in the Gun Control Act of 1968, 26 USC 5848, which supports the gun registration requirement by providing that registration information may not be used directly or indirectly against the applicant in a criminal proceeding.

A further complication from the standpoint of classification of our many existing immunity statutes is that our formal administrative regulatory hearings are not all centered in the Independent Regulatory Commissions, such as the Interstate Commerce Commission, Federal Trade Commission, Securities and Exchange Commission, etc. Some administrative hearings are held by an executive branch department. For example, regulation of agricultural commodities and marketing is centered in the Department of Agriculture which administers the following acts, each containing an immunity provision: Commodity Exchange Act, 7 USC 15; Packers and Stockyards Act, 7 USC 222; Perishable Agricultural Commodities Act, 7 USC 499m (f); Agricultural Marketing Agreement Act, 7 USC 610 (h); Anti-Hog Cholera Act, 7 USC 855; Cotton Research and Promotion Investigations, 7 USC 2115(b). The first five of these statutes are "automatic", not requiring a warning of the interrogator by a witness plea of the Fifth Amendment; the sixth is a "claim" statute, making a plea of the privilege a precondition of immunity.

In summary, and reserving for the next section an analysis of problem areas in existing immunity legislation, it can be said that federal immunity legislation has developed haphazardly. Congress has made a series of ad hoc responses to the need to support particular statutory programs with a power to compel testimony. There is no general federal immunity statute. There is no uniform immunity statute for the independent regulatory agencies. There is no uniform immunity statute for the executive branch. There is no uniform immunity statute for criminal law enforcement. Nor is there uniform provision for consultation before one agency authorizes an immunity which may adversely affect the criminal law enforcement program under a statute administered by another agency.