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Immunity 101: Mark Meadows Edition
Jack Smith's move may cause headaches for Georgia prosecutors
As Donald Trump’s chief of staff during the efforts to overturn the 2020 election, Mark Meadows was in the room where it happened. He took part in many of the key events and meetings that form the basis of Trump’s D.C. indictment. He was on Trump’s “perfect phone call” with Georgia secretary of state Brad Raffensperger when Trump demanded Raffensperger “find” enough votes to change the election results. But despite his position at the center of critical events, Meadows was not listed as one of the unindicted co-conspirators in the D.C. case.
Now we know why. ABC News reported last week that special counsel Jack Smith has granted Meadows immunity. According to the report, Meadows met with prosecutors several times and testified in the grand jury. He reportedly testified that he told Trump the claims of voter fraud were baseless, and that Trump was being dishonest when he repeatedly claimed the election was rigged and stolen.
We don’t know what else Meadows had to offer that led Smith to decide it was worth granting Meadows immunity to get his testimony. But considering a prosecutor’s general reluctance to immunize such a major player, we can assume it was significant.
It appears an immunized Meadows will be a key government witness in Trump’s D.C. trial. That makes this a good time for an explainer on what exactly immunity is, how it works, and what it might mean for Meadows, for Trump — and for the Georgia state prosecutors who are still pursuing Meadows.
Mark Meadows (Credit: AP - Patrick Semansky)
The Fifth Amendment gives a witness the right to refuse to answer any questions if the answers might tend to implicate him in criminal activity. If a witness like Meadows tells federal prosecutors he will assert the 5th if called to testify, they can apply to a federal judge for an immunity order under federal law (18 U.S.C. 6001-6005). Once served with that order, the witness must testify. Nothing the witness says can then be used against him, directly or indirectly, in any criminal case.
The witness who is granted statutory immunity no longer has a choice - he is under a court order. His testimony might lead to embarrassment, political damage, professional sanctions, civil liability or other consequences, but none of that matters. The immunity order compels him to testify, whether he likes it or not.
If a witness refuses to testify despite a grant of immunity, he can be jailed for contempt until he complies. If he lies during his testimony, he is subject to potential prosecution for perjury, obstruction of justice, and related crimes. But as long as he testifies truthfully, that testimony can’t be used against him in any criminal case.
Prosecutors usually will only grant immunity as a last resort. It means acknowledging that a person has engaged in criminal conduct but you are going to give them a pass — which prosecutors don’t like to do. They generally will grant immunity only if the need for the testimony in order to punish greater misconduct is great enough that the public interest justifies letting this witness off the hook to obtain that testimony.
Prosecutors will only grant immunity if they believe there is a good-faith basis for the witness’s claim of a 5th amendment privilege. If they believe the witness does not really have a valid 5th and is just trying to avoid testifying, they can go to court to challenge the witness’s claim.
Prosecutors are also reluctant to grant a witness immunity if they aren’t sure what the witness will say. This is the “buying a pig in a poke” problem – you don’t want to immunize someone thinking they are just a bit player only to find out they are really the criminal mastermind and you’ve just blown your case. The most common way prosecutors determine whether immunity is appropriate is through a proffer. The witness, or sometimes just his attorney, will meet with prosecutors in an off-the-record session to answer questions and provide a preview of what the witness would say if granted immunity.
Presumably this is what happened with Meadows. His attorney informed prosecutors that Meadows would take the 5th if subpoenaed to testify in the grand jury. A proffer session most likely followed. As a result of the proffer, prosecutors presumably were satisfied that Meadows had a good faith basis to claim the 5th, which seems clearly correct.
More significantly, prosecutors decided the public interest would best be served by granting Meadows immunity to compel his testimony. Based on what is already public, it’s not apparent why prosecutors would think they needed Meadows’s testimony on top of everything else they have. That suggests Meadows has provided significant evidence to prosecutors that is not yet known.
Use Immunity vs. Transactional Immunity
The federal immunity statutes provide for what is called use and derivative use immunity (or just use immunity, for short). When a witness has testified under a grant of use immunity, prosecutors can’t make direct use of that testimony to prosecute the witness, such as by submitting a transcript of the testimony as evidence. They also can’t make any derivative use of the testimony, which means using the immunized testimony to track down new leads and discover new information that is then used against the immunized witness.
Transactional immunity is a broader protection. It means that prosecutors agree not to prosecute the witness for anything based on the events about which he testifies, regardless of the source of the prosecutor’s information. But this is not the protection provided by the federal immunity statutes, and federal prosecutors almost never agree to it.
The idea behind use and derivative use immunity is that, as far as a potential criminal prosecution is concerned, the witness is left in exactly the same position he would have been in had he not been compelled to testify. Prosecutors may not make any use of anything that came out of his mouth during immunized testimony to help them later prosecute him.
A witness who is granted use immunity theoretically can still be prosecuted. To do that, prosecutors have the burden of proving they will not rely in any way, directly or indirectly, on the immunized testimony to prove their case. (This can be a very substantial burden, as we will see below when discussing the Oliver North case.)
Although it’s theoretically possible to still prosecute an immunized witness, practically speaking it almost never happens. In addition to being very difficult, prosecuting immunized witnesses undercuts the purpose of immunity in the long run. Prosecutors want a witness who has been immunized to hold nothing back. If the witness believes he might still be prosecuted, he has an incentive to be less forthcoming in order to protect himself. As long as an immunized witness testifies truthfully, therefore, he is almost never going to be prosecuted – at least not by the same prosecutors who immunized him (more on that below as well).
This grant of immunity indicates that whatever plans Smith may have about prosecuting the unindicted co-conspirators, he does not intend to indict Meadows on federal charges.
Formal vs. Informal Immunity
Formal immunity or statutory immunity is granted by a court order pursuant to federal statute. Prosecutors apply for the order, which is signed by a federal judge and served upon the witness, who must then testify.
Prosecutors can also grant informal immunity, sometimes called letter immunity or pocket immunity. (I’m not sure where that last nickname comes from - maybe because the prosecutor can just pull the agreement out of her pocket and sign it rather than jumping through all the hoops of obtaining a court order.) Informal immunity from federal prosecutors typically also provides use and derivative use protection. But it’s done by a letter agreement between the prosecution and the defense, rather than by court order.
If the defense is comfortable with it, the parties will often use informal immunity simply because it’s easier and faster. But it does provide less protection for the defendant. With federal formal immunity, because the testimony is compelled, the 5th amendment also prohibits state prosecutors from making any direct or derivative use of the immunized testimony. But because informal immunity is the result of a voluntary agreement and the testimony is not compelled, it does not bind other prosecutors.
If the news reports are correct, Meadows received formal use/derivative use immunity pursuant to federal statute and an order signed by a federal judge. That makes sense; he would have had little incentive to enter into an informal immunity agreement. Meadows would likely prefer to be able to tell Trump world that he was compelled to testify and had no choice, rather than that he cut a deal with prosecutors. And the fact that formal immunity will also bind Georgia prosecutors could be significant, as we will discuss below.
Immunized Witnesses vs. Cooperating Witnesses
So does this mean Meadows has “flipped” and is cooperating? Not really.
It appears Meadows did not agree to cooperate with prosecutors voluntarily in exchange for some kind of deal. He simply did the minimum the law requires: agreed to testify truthfully after he was compelled by a court order that granted him immunity. That testimony could be very damaging for Trump, but Meadows did not provide it willingly.
This can be a meaningful distinction. A witness who pleads guilty and is cooperating might volunteer additional information and try to help the prosecutors. She will get the best outcome for herself if she provides as much information as possible so prosecutors will later tell her sentencing judge how valuable her cooperation has been. An immunized witness who is happily cooperating but simply required immunity for his own protection might also be more forthcoming.
But a witness who refused to cooperate and testified only when compelled is not going to be as helpful. He may truthfully answer the questions that are asked, but will not go out of his way to volunteer additional information. He may still try to paint things in a light more favorable to the defendants (and to himself).
It appears Meadows hasn’t truly flipped. He’s simply — and presumably grudgingly — complying with a court order and answering the questions put to him. Again, that testimony could be extremely damaging to Trump, but it’s not accurate to call Meadows a true cooperator.
What This Means for Georgia
Meadows is in an extremely unusual position. He’s been immunized by federal prosecutors, but Georgia state prosecutors have indicted him based on the same events and are still pursuing their case. It would have been possible for Meadows to seek immunity from both federal and Georgia prosecutors, but apparently that didn’t happen or Georgia DA Fani Willis was not willing to agree.
The 5th Amendment applies to Georgia prosecutors as well. They can still prosecute Meadows, but if they do they will have to prove that none of the evidence in their case relies, directly or indirectly, on the immunized testimony he provided to federal prosecutors. They don’t have his immunized grand jury testimony, so as of now that likely would not be an issue. However, if Meadows were to testify in the D.C. trial pursuant to the grant of immunity, that could end up being a significant problem for the Georgia prosecutors.
To see why, consider the case of Oliver North.
Oliver North and Derivative Use
Lt. Col. Oliver North was a member of the National Security Council staff under president Reagan. He was implicated in the Iran-Contra scandal, where the Reagan administration illegally sold weapons to Iran and used the money to fund the Contra rebel group in Nicaragua. Iran-Contra led to an Independent Counsel investigation, and North was a target of that investigation.
While the criminal investigation was going on, North was subpoenaed to testify before a joint Congressional committee that was also investigating Iran-Contra. North took the 5th, and Congress granted him immunity over the objections of the Independent Counsel. (The federal immunity statutes also give Congress the power to immunize witnesses.) North subsequently testified for several days and admitted his role in the scheme, as well as destroying evidence and lying to investigators. His testimony was televised and widely publicized.
The Independent Counsel later indicted and convicted North for obstruction of justice and other charges. But the U.S. Court of Appeals for the D.C. Circuit overturned his convictions, holding that they improperly relied on the fruits of his immunized testimony.
Prosecutors and agents working on North’s case had taken great pains to avoid any exposure to his immunized testimony. But the Court of Appeals held that for each witness prosecutors called at trial, they had to prove — question by question, witness by witness —that the witness’s recollection had not been influenced in any way by seeing North’s immunized testimony. This was true, the court held, even if it was shown that some witnesses who were sympathetic to North deliberately watched his testimony so their own testimony would be tainted. Prosecutors ultimately were unable to meet that burden and were forced to drop the case.
You might recall that a number of witnesses called by the House January 6 Committee took the 5th and refused to testify. Congress could have sought to grant them immunity, but didn’t - presumably because they wanted to avoid creating any North issues for prosecutors.
Georgia Prosecutors Could Have a North Problem
The North holding has clear implications for the Georgia state prosecution. If Meadows were to testify at Trump’s D.C. trial under a grant of immunity before he is tried in Georgia, the Georgia prosecutors would be required to prove that no one on the prosecution team saw, heard about, or was otherwise influenced by that testimony. They would have to prove the same thing about any witness they called in their case against Meadows. As it was in the North prosecution, that could be an insurmountable hurdle.
If Meadows testifies in D.C. before his trail in Georgia, I’d expect to see Georgia prosecutors asking Jack Smith’s team to take steps to help them avoid a North problem. For example, they could seek a ruling that Meadows’s testimony be closed to the press and public and be subject to a protective order. That would prevent other witnesses from being exposed to his immunized testimony. But members of the media would likely object to the public being denied access to the testimony of such a critical witness, and there might also be legal issues surrounding Trump’s 6th amendment right to a public trial.
I initially thought Meadows’ federal immunity might end up hurting him in Georgia, where he is not similarly protected. Having looked at it some more I now think the opposite: his federal immunity is more likely to end up creating a headache for Georgia prosecutors and giving him a potential defense in that case.
Jack Smith’s decision to grant Meadows immunity could be good for his case. But depending on the timing, it could definitely could throw a wrench in the gears of the Georgia prosecution.
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