Immunity May Hinder Prosecutions : Legal Experts See Special Counsel Facing Major Barriers

WASHINGTON —  President Reagan’s request for granting limited immunity to two key figures in the Iran- contras scandal would raise substantial--perhaps insurmountable--barriers to prosecuting former National Security Adviser John M. Poindexter or Lt. Col. Oliver L. North.

On the surface, the proposal, which Reagan advanced after discussing it with Atty. Gen. Edwin Meese III, seems similar to what happened in Watergate, when the Senate select committee granted immunity to two principals in the scandal.

‘A Big Difference’

But “there’s a big difference,” former Watergate special prosecutor Henry S. Ruth Jr. said in an interview Tuesday. “When immunity was given by the Senate committee, Watergate had been under investigation for a year. Here you have zip--no way of testing what someone says under immunity.”

Under “use immunity,” the kind that Reagan said should be extended, prosecutors would have to prove that all evidence and leads used against Poindexter and North, a former National Security Council aide, were developed independently--not from testimony given under immunity.

Prosecutors could try to meet this considerable burden by presenting to a court sealed evidence gathered against either man before he testifies. During the Watergate scandal, special prosecutor Archibald Cox was successful in collecting such evidence in the cases of presidential aides John W. Dean III and Jeb Stuart Magruder.

But Watergate prosecutors had the benefit of submitting evidence from investigations that had begun a year earlier. In the Iran-contras case, the FBI investigation was started only late last month and an independent counsel has yet to be appointed.

Cox Questions Timing

“Rushing to grant use immunity risks unnecessarily exculpating two of the principal actors in what may well be a major conspiracy to subvert the laws at the highest levels of government,” Cox said Tuesday in a statement circulated by Common Cause, the citizen’s lobby for which he serves as chairman.

“Both the independent counsel and the Senate and House select committees should be allowed time to study the evidence now available and check other potential sources before deciding whether and when immunity should be given,” Cox said.

At the same time, Carl Feldbaum, a former assistant special prosecutor under Cox, Ruth and the late Leon Jaworski, cautioned: “To grant use immunity could subvert the independent counsel yet to be named.”

The 30 days provided by law for a prosecutor to gather and submit evidence is not nearly enough time when an investigation has just begun, asserted Feldbaum, who now heads a Washington consulting firm.

A newly appointed independent counsel “won’t know from nothing. He won’t know what’s being given away” with immunity, Feldbaum said in an interview.

FBI Evidence Cited

As for the argument that the independent counsel could submit evidence that the FBI has been gathering since it entered the case late last month, “it doesn’t happen that way,” Ruth said.

Similarly, Ruth, now a Philadelphia attorney, said: “You need a prosecutor in place and a grand jury, which is a much more powerful tool than investigative interviews (by the FBI). . . . You need time, for people to start worrying about what their buddies are saying.”

One of the main prosecutors in the Watergate trial, Richard Ben-Veniste, concluded that the request for limited immunity “seems to totally violate the spirit of the independent counsel by interjecting political considerations into the law.”

Ben-Veniste, in an interview, emphasized that he did not use “political” as a pejorative term. “But the whole reason the independent counsel (act) was passed was to insulate from political influence determinations that affect the criminal justice system,” he said.

Congress Seen as Obstacle

Another major obstacle for prosecutors involves pretrial publicity from televised congressional hearings--sessions that witnesses presumably would not participate in without immunity.

Cox, recognizing this, tried in vain to persuade the Watergate select committee to postpone its hearings. And, failing that, he sought a court order to require that the hearings be closed or at least conducted without radio or television. But U.S. District Judge John J. Sirica said that he did not think the court had the authority to compel that.