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128a
not violate a clear and unambiguous standard and
therefore does not constitute professional misconduct.
2. The USAO's Agreement Not to Prosecute
Unidentified "Potential Co-Conspirators"
Did Not Violate a Clear and Unambiguous
Department Policy
Several witnesses told OPR that they believed the
government's agreement not to prosecute unidentified
"potential co-conspirators" amounted to "transactional
immunity," which the witnesses asserted is prohibited
by Department policy. Although “use immunity" pro-
tects a witness only against the government's use of
his or her immunized testimony in a prosecution of
the witness, and is frequently used by prosecutors,
transactional immunity protects a witness from
prosecution altogether and is relatively rare.
OPR found no policy prohibiting a U.S. Attorney
from declining to prosecute third parties or providing
transactional immunity. One section of the USAM
related to immunity but applied only to the exchange
of "use immunity" for the testimony of a witness who
has asserted a Fifth Amendment privilege. See USAM
§ 9-23.100 et seq. Statutory provisions relating to
immunity also address the same context. See 18
U.S.C. § 6002; 21 U.S.C. § 884. Moreover, apart from
voluntariness or enforceability concerns, courts have
not suggested that a prosecutor's promise not to
prosecute a third party amounts to an inappropriate
exercise of prosecutorial discretion. See, e.g., Marquez,
909 F.2d at 741-43; Kemp, 760 F.2d at 1248; Stinson,
839 So. 2d at 909; Frazier, 697 So. 2d 945. OPR found
no clear and unambiguous standard that was violated
by the USAO's agreement not to prosecute "potential
co-conspirators," and therefore cannot conclude that
negotiating or approving this provision violated a clear
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