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On Thursday afternoon, Emptywheel live blogged an legal argument between Fitz and Jeffress over the upcoming testimony of Ari Fliesher. You can find it here at 4:27 pm.

That discussion was later covered by the Associated Press:

WASHINGTON (AP) — Attorneys for former vice presidential aide I. Lewis ''Scooter'' Libby want more information about an unusual immunity-from-prosecution deal that government lawyers gave former White House spokesman Ari Fleischer in the CIA leak case.

Special Prosecutor Patrick Fitzgerald says that in early 2004, as his investigation was heating up into who revealed CIA operative Valerie Plame's name to reporters, Fleischer stepped forward with an offer to prosecutors: Promise no prosecution and he would help their case.

Fleischer acknowledged being one of the leakers, but he wouldn't say a word without a promise of immunity.

Prosecutors normally insist on an informal account of what a witness will say before agreeing to such a deal. It's known in legal circles as a proffer, and Fitzgerald said Thursday that he never got one from Fleischer, who was chief White House spokesman for the first 2 1/2 years of President Bush's first term.

''I didn't want to give him immunity. I did so reluctantly,'' Fitzgerald said in court Thursday. ''I was buying a pig in a poke.''

Defense attorneys are skeptical. Fleischer is expected to testify Monday against Libby, who is accused of lying and obstructing Fitzgerald's investigation. Attorneys are preparing court documents demanding to know exactly what Fleischer promised in exchange for immunity.

''I'm not sure we're getting the full story here,'' defense attorney William Jeffress said in court. . .

What is Jefferess referring to? Jeffress knows that there is a process often used by federal prosecutors to get a preview of the likely testimony that witness seeking a plea deal or immunity agreement might give. This process is known as a "proffer" session and it comes about as a result of a limited one day immunity agreement letter known in the biz as a "Queen for a Day" letter.

First you should realize that there a different types of immunity and it can be obtained in different ways. For example: if a witness does not want to testify and asserts their 5th  Amendment right against self incrimination, the government can seek a court order giving that person immunity and then force that person to testify. This is also known as statutory or formal immunity.

The DOJ Criminal Resource Manual describes the different types of immunity orders that may be granted:

Criminal Resource Manual 716

717 Transactional Immunity Distinguished

Title 18 U.S.C. § 6002 provides use immunity instead of transactional immunity. The difference between transactional and use immunity is that transactional immunity protects the witness from prosecution for the offense or offenses involved, whereas use immunity only protects the witness against the government's use of his or her immunized testimony in a prosecution of the witness — except in a subsequent prosecution for perjury or giving a false statement

718 Derivative Use Immunity

The use immunity statute (18 U.S.C. § 6002) allows the government to prosecute the witness using evidence obtained independently of the witness's immunized testimony. Section 6002 provides:

[N]o testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

The Supreme Court upheld the statute in Kastigar v. United States, 406 U.S. 441 (1972). In so doing, the Court underscored the prohibition against the government's derivative use of immunized testimony in a prosecution of the witness. The Court reaffirmed the burden of proof that, under Murphy v. Waterfront Commission, 378 U.S. 52 (1964), must be borne by the government to establish that its evidence is based on independent, legitimate sources:

This burden of proof, which we affirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.

Kastigar, supra, at 460.

By contrast, there is also a situation where witnesses themselves, knowing that they have valuable information, want to trade that information for immunity. This is known as "informal immunity" because it is not the result of a formal court order. The Criminal Resource Manual explains informal immunity thusly:

719 Informal Immunity Distinguished From Formal Immunity

Statutory immunity, also known as formal immunity, should be distinguished from informal immunity. The latter term, often referred to as "pocket immunity" or "letter immunity," is immunity conferred by agreement with the witness. For example, the government and a cooperating defendant or witness might enter into a plea agreement or a non-prosecution agreement if the defendant or witness agrees to cooperate. Testimony given under informal immunity is not compelled testimony, but is testimony pursuant to an agreement and thus voluntary. The principles of contract law apply in determining the scope of informal immunity. United States v. Plummer, 941 F.2d 799, 802 (9th Cir. 1991); United States v. Britt, 917 F.2d 353 (8th Cir. 1990), cert. denied, 498 U.S. 1090; United States v. Camp, 72 F.3d 759 (9th Cir. 1996) [replacing 58 F.3d 491 (9th Cir. 1996)]. Grants of informal immunity that do not expressly prohibit the government's derivative use of the witness's testimony will be construed to prohibit such derivative use. Plummer, supra. But a grant of informal immunity that expressly provides for derivative use of the testimony by the government will be upheld. United States v. Lyons, 670 F.2d 77, 80 (7th Cir. 1982), cert. denied, 457 U.S. 1136.

An important difference between statutory/formal immunity and informal immunity is that the latter is not binding upon the States. This follows from the fact that the local prosecutor representing the State is normally not a party to the agreement between the witness and the Federal prosecutor, and thus cannot be contractually bound by the Federal prosecutor's agreements. </blockquote>

If I understood the exchanges between the lawyers as blogged by Marcy, Ari Fliesher has an informal immunity agreement, rather than a formal immunity order. Prosecutors do not give out these agreements like candy, you know, and only do so when they believe it is necessary to do so to get something of higher value than the conviction of the witness seeking immunity. Remember, if the guy wants immunity HE thinks he may have committed a crime.

As Pat said, prosecutors are not happy to buy a "pig in a poke", so how do you find out whether or not the witness has testimony (or tangible evidence) to give you that is worth more to your investigation than his own criminal conviction?

Enter: The Queen for a Day agreement. This one day immunity deal allows the witness to come in for a proffer session and give a little preview of his testimony. Agents usually take detailed notes because if the witness is found not to be telling the truth, or if he later tries to tell a different story, he can be prosecuted under the false statements crimes and the notes are needed to preserve evidence for that possible subsequent prosecution.

I found a nifty article on Findlaw written by a defense lawyer that explains this well:

Proffer or "queen for a day" letters are written agreements between federal prosecutors and individuals under criminal investigation which permit these individuals to tell the government about their knowledge of crimes, with the supposed assurance that their words will not be used against them in any later proceedings. (The individuals can either be witnesses, subjects or targets of a federal investigation, although it is subjects and targets who provide most proffers.)

[Snip]

You should think of a proffer session as a sneak preview in which you show the federal authorities what you can bring to the table if they cut a deal with you.

[Snip]

(… in the overwhelming majority of cases, the formal, written proffer agreement will explicitly state that no promises of either immunity or a plea bargain have been made.) Accordingly, your attorney and the prosecutor should have already informally worked out, before you ever sit down for the proffer session, a basic understanding of: 1) what you are likely to proffer; and, 2) what the contemplated post-proffer immunity or plea agreement will look like. To the extent that either part of this informal understanding is not perfectly clear to you, your attorney, and the federal prosecutor, you are heading into exceedingly dangerous territory. Why? Because, proffering will almost always harm you if post-proffer immunity/plea discussions fall apart and the government decides to indict you. For the same reason, if the prosecutor is not trustworthy or if you are not prepared to tell the complete truth, the proffer session should never take place.

[Snip]

Unlike immunity or plea agreements, proffer agreements do not prevent the government from making derivative use of your statements. In other words, although the government cannot use your actual proffer session statements against you in its case-in-chief, it can use the information that you provide to follow up leads and conduct further investigations. If those leads and further investigations capture new evidence, such evidence can be used to indict and convict you. 

So what makes the immunity deal for Ari unusual are several things:

1) PatFitz unhappily bought a "pig in a poke"

2) He says he does not have any discovery material to turn over with regard to Ari's testimony. Prior statements of witnesses (even if contained in interview notes) have to be turned over to the defense as Rule 3500 material. It sounds like no material was turned over. Since Pat has never been known to cheat, that can only mean that they didn't even take notes???????

Maybe I have lost my mind or am just high from WAY too much popcorn, but I think that this means that Team Fitz gambled that Ari had something huge to tell. The fact that whatever it is that PatFitz is saying he does not have to turn over to the defense even exists, to the extent it may exist, suggests to me that the investigation is not over and that maybe, just maybe, that gamble has paid off.

Please understand, this is ONLY tea leaf reading, but no other explanation suggests itself that accounts for all factors. I think maybe there is something out there, that came from Ari, that is NOT part of the proof relating to the crimes Libby is charged with (does this also explain why Libby's charges were so narrowly drawn?) that Team Libby is dying to know about and Pat is fighting hard to keep a secret. If it was all going to be over after the Libby trial, why fight so hard to keep this info secret? Why say that defense lawyers ask questions to try to find out things they are not supposed to find out?

Is Pat suggesting that Team Libby has gone to trial in an effort to force Pat to disclose what else he has found out? After all, a defense lawyer should not be asking questions that are designed to elicit information to help some other criminal, only those which are designed to help his own client. Asking questions and seeking info that does not help you client but instead benefit someone else, is a prohibited conflict of interest.

Even if the immunity deal was a gamble, it would have to be a gamble based upon Team Fitz's assessment that the immunity agreement met the proper standards for giving immunity. DOJ spells those standards out:

9-23.210 Decision to Request Immunity — The Public Interest

Section 6003(b) of Title 18, United States Code, authorizes a United States Attorney to request immunity when, in his/her judgment, the testimony or other information that is expected to be obtained from the witness "may be necessary to the public interest." Some of the factors that should be weighed in making this judgment include:

A.     The importance of the investigation or prosecution to effective enforcement of the criminal laws;

B.     The value of the person's testimony or information to the investigation or prosecution;

C.     The likelihood of prompt and full compliance with a compulsion order, and the effectiveness of available sanctions if there is no such compliance;

D.     The person's relative culpability in connection with the offense or offenses being investigated or prosecuted, and his or her criminal history;

E.      The possibility of successfully prosecuting the person prior to compelling his or her testimony;

F.      The likelihood of adverse collateral consequences to the person if he or she testifies under a compulsion order.

These factors are not intended to be all-inclusive or to require a particular decision in a particular case. They are, however, representative of the kinds of factors that should be considered when deciding whether to seek immunity

9-23.212 Decision to Request Immunity — Conviction Prior to Compulsion

It is preferable as a matter of policy to punish offenders for their criminal conduct prior to compelling them to testify. While this is not feasible in all cases, a successful prosecution of the witness, or obtaining a plea of guilty to at least some of the charges against the witness, will avoid or mitigate arguments of co-defendants made to the court or jury that the witness "cut a deal" with the government to avoid the witness's own conviction and punishment.

So, the question that will keep me from getting a good night's sleep for at least the next couple days is:

What is Ari's bombshell? And will it come out in the Libby trial or is it still hidden at the heart of an as yet incomplete Grand Jury investigation?

Arrrrghhhh! I cannot stand the suspense!

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