How Prosecutors Use Immunity Deals to Bolster Cases

(Bloomberg) -- Prosecutors pursuing more information about hush-money payments made by President Donald Trump’s personal lawyer, Michael Cohen, have resorted to a common tactic: granting immunity in exchange for testimony. Trump ally David Pecker, whose American Media Inc. publishes the Trump-friendly tabloid The National Enquirer, got an immunity deal, according to Vanity Fair. A day later, the Wall Street Journal reported the government made a similar arrangement with the president’s longtime finance chief, Allen Weisselberg.

1. What is immunity?

It’s a deal extended by a prosecutor that means the recipient can’t be prosecuted -- directly or indirectly -- using the testimony or evidence he or she provides under the agreement.

2. Why do prosecutors grant it?

They give it to individuals who are or may be guilty of a crime and are thought to have important information about other suspects. It’s a common tool that forces the recipient to hand over evidence, provide testimony in the form of sworn affidavits and sometimes even take the witness stand in a trial. Those receiving immunity can’t invoke their Fifth Amendment right against self-incrimination because the government agrees not to use their words against them as part of a criminal case.

3. How does it compare to a cooperation agreement?

Both require recipients to provide full and honest information to prosecutors, but cooperation agreements are reached as part of a defendant’s guilty plea, in a bid to get a lighter sentence. Immunity deals are reached before any charges are filed and do not require recipients to concede any guilt. Both agreements are tools for helping prosecutors gather information to establish the facts in a case.

4. Does immunity guarantee someone is in the clear?

Not usually. An immunity deal does not protect against prosecution based on evidence other than the recipient’s testimony, including evidence that may have existed before the immunized testimony was provided. Recipients can also be prosecuted for perjury or obstruction of justice if they give false testimony or mislead investigators. Yet a grant of immunity can make it harder to prosecute someone because the government may have to show that it didn’t rely on the person’s words.

5. How far does immunity extend?

It depends on the type of deal that’s reached. So-called use immunity guarantees that information provided by recipients won’t be used as evidence against them if they’re ever charged. Transactional immunity is broader. It’s a veritable get-out-of-jail-free card that prosecutors are usually reluctant to grant.