The opinion of the court was delivered by: GESELL
GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE
The indictment in this criminal case was returned by the grand jury on March 16, 1988, after months of thorough investigation. Defendants Poindexter, North and Hakim have jointly moved to dismiss, claiming that their separate Fifth Amendment rights have been infringed by impermissible use of their compelled testimony. The motion was fully briefed and argued.
At the core of the indictment is the claim that the defendants formed and carried out a secret operation to place funds, including funds generated from an authorized government initiative to free American hostages, into unauthorized hands for their personal profit, by deceiving Congress, obstructing investigations, altering documents, abusing the tax laws, and by other means prohibited by law. These activities were allegedly conducted from the White House by the two government officials and two businessmen indicted.
These charges of criminal conduct were preceded by a series of widely publicized congressional committee hearings. Each of the four men subsequently named defendants testified at length concerning his involvement in events later recited in the 101-page, 23-count indictment. After pleading the Fifth Amendment, the three moving defendants were compelled by Congress to testify under separate orders granting each of them use immunity. They claim their immune testimony, both incriminating and otherwise, was thereafter used, directly and indirectly, to gain proof of their alleged criminal misconduct, thus violating their individual Fifth Amendment rights.
Since it was apparent that many trial days would be consumed if the indictment was fully tried, the Court has given extensive pretrial consideration to many aspects of this motion in order to determine, at least preliminarily, whether or not defendants' contentions have sufficient merit to preclude trial from the outset. For the reasons set forth below, the Court, after hearing testimony and considering other materials during this substantial preliminary inquiry, finds no basis for granting the motion pre-trial and has determined in its discretion and in accordance with procedures approved in this Circuit
that any final consideration of the issues must be deferred until after a full trial.
In November, 1986, Congress undertook to investigate when it came to believe that the administration was trafficking arms to Iran to bring about release of American hostages and that the proceeds had been diverted to the Nicaraguan contras for military assistance at a time when Congress had legislated to bar such aid to these resistance forces. Select Investigation Committees were eventually chosen from each house. These Committees merged their efforts, sharing information during some 40 days of public hearings, supplemented by closed executive sessions in what came to be known as the Iran-Contra Affair.
Public hearings commenced May 5, 1987. The activities of North and his associates became the focus of the Committee hearings.
Previously, on December 1, 1986, the President appointed a Special Review Board (the "Tower Commission") to conduct an investigation of the same disclosures and on December 4, 1986, Attorney General Meese requested appointment of an Independent Counsel pursuant to 28 U.S.C. § 592(c)(2) to investigate the possible criminal conduct of Lt. Col. Oliver L. North, a White House aide, and others unnamed. Lawrence E. Walsh, a former federal judge, was appointed Independent Counsel and given broad authority to investigate by Order of the Division for the Purpose of Appointing Independent Counsels of the United States Court of Appeals for the District of Columbia Circuit on December 19, 1986.
A grand jury was then empaneled to assist his investigation on January 28, 1987, and proceedings commenced.
After May 1, 1987, as the two inquiries went forward simultaneously there was a growing fire storm of publicity that brought practically every aspect of defendants' affairs into sharp focus. The moving defendants were vigorously attacked and vigorously defended in the midst of ardent political debate that accompanied the unravelling public disclosure by congressional committees.
Congress purported to pursue its legitimate legislative interest in the Iran-contra affair but did so in such a persistent manner that it sought, among other things, to fix individual responsibility for conduct it considered unauthorized by law. When Hakim, North and Poindexter, a former Admiral, individually refused to testify before Congress and claimed possible incrimination by asserting their Fifth Amendment rights, they were each, in turn, granted use immunity pursuant to 18 U.S.C. § 6001 et seq. Their subsequent testimony in each instance was compelled.
The use immunity orders Congress sought and obtained ...