Independent counsel Kenneth Starr wants - and may need - the testimony of Monica Lewinsky for his investigation into the activities of President Clinton and several of his associates. And Lewinsky wants to avoid being prosecuted for perjury or any other charge.
So why have the negotiations between Starr and the Lewinsky camp not resulted in testimony for him and immunity for her?
Under normal circumstances, federal prosecutors grant a form of immunity known as “use” immunity to a witness, meaning the witness has protection against crimes disclosed in testimony. But on rare occasions, “transactional” immunity is granted, giving a witness full protection from all criminal liability.
Lewinsky’s attorney, William Ginsburg, has insisted on that broader immunity for his client. If Starr imposed use immunity on her, as is his right, she might have refused to testify - even though that might have exposed her to contempt charges.
Starr did not explain his refusal to grant full immunity to the 24-year-old former White House intern. But it is widely assumed that he was not satisfied with the testimony she was prepared to give in exchange.
In interviews, several legal experts said that when immunity is denied, it’s usually for one of several reasons: Either prosecutors feel the witness is untrustworthy, withholding information; or because investigators need more time to corroborate the truthfulness of a witness.
“I think they want everything from her that they can get. They want full value for their immunity,” said Yale Kamisar, professor of law at the University of Michigan.
Even without knowing what Lewinsky was offering to say, legal experts say Starr’s caution was understandable. His experience in the Whitewater investigation has shown that the offer of immunity can create more problems than opportunities for a defendant whom prosecutors want as a witness.
Susan McDougal, the Clintons’ hapless partner in that land deal gone sour, has been in jail for more than a year and a half - ever since Starr slapped her with a grant of immunity to compel her testimony about a $300,000 loan she signed more than 10 years ago.
Starr’s offer gave McDougal immunity for everything but perjury - the crime for which she felt most at risk. She had already been convicted of fraud, and she said she feared getting hit with a perjury charge if her testimony did not match Starr’s version of the case.
When she refused to testify, declaring that she had no knowledge of wrongdoing by the Clintons, she was jailed for contempt. She’s been there ever since.
The Fifth Amendment to the U.S. Constitution protects all witnesses from testifying to matters that may incriminate themselves. But granting immunity gives prosecutors a weapon that can force even the most reluctant witness to talk or face jail.
Either way, the process is fraught with risks for the prosecution as well as the defendant.
“The mere fact that you’ve immunized someone doesn’t give anyone the assurance that the witness will tell the truth,” said Daniel Richman, a former federal prosecutor who now teaches at Fordham Law School in New York.