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?
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