668
Syllabus
contention, general personal testimonial integrity or privacy is not a reliable guide to the Clause's scope of protection. Fifth Amendment tradition offers, in practice, a conditional protection of testimonial privacy. Since the judiciary could not recognize fear of foreign prosecution and at the same time preserve the Government's existing rights to seek testimony in exchange for immunity (because domestic courts could not enforce the immunity abroad), extending the privilege would change the balance of private and governmental interests that has been accepted for as long as there has been Fifth Amendment doctrine. Balsys also argues that Murphy's policy catalog supports application of the privilege in order to prevent the Government from overreaching to facilitate foreign criminal prosecutions in a spirit of "cooperative internationalism." Murphy recognized "cooperative federalism"—the team-work of state and national officials to fight interstate crime—but only to underscore the significance of the Court's holding that a federal court could no longer ignore fear of state prosecution when ruling on a privilege claim. Since in this case there is no counterpart to Malloy, imposing the Fifth Amendment beyond the National Government, there is no premise in Murphy for appealing to "cooperative internationalism" by analogy to "cooperative federalism." The analogy must, instead, be to the pre-Murphy era when the States were not bound by the privilege. Even if "cooperative federalism" and "cooperative internationalism" did support expanding the privilege's scope, Balsys has not shown that the likely costs and benefits justify such expansion. Cooperative conduct between the United States and foreign nations may one day develop to a point at which fear of foreign prosecution could be recognized under the Clause as traditionally understood, but Balsys has presented no interest rising to such a level of cooperative prosecution. Pp. 690-700.
119 F. 3d 122, reversed and remanded.
Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, OTMConnor, and Kennedy, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Parts I, II, and III. Stevens, J., filed a concurring opinion, post, p. 700. Ginsburg, J., filed a dissenting opinion, post, p. 701. Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined, post, p. 702.
Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Solicitor General Waxman, Acting Assistant Attorney General Keeney, Barbara McDowell, and Joseph C. Wyderko.
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