concurring in part, and dissenting in part.
I.
I join in Parts I-V of the court’s opinion, but I respectfully dissent from Parts VI-VIII. In my opinion, this court exceeds its power in imposing upon the Executive Branch the “debriefing” procedure it adopts today, unfortunately without the benefit of briefing by either party in this case. This new procedure would require the government to grant limited immunity to defense witnesses asserting the Fifth Amendment privilege for debriefing purposes as a step preliminary to the trial court’s inquiry into whether the prosecutor withholds use immunity for an improper purpose.1 Even absent evidence or allegation of bad motive, the court also places upon the prosecutor the burden of demonstrating that the reasons for withholding use immunity are justified. Congress expressly left the decision to seek witness immunity “exclusively to the Justice Department.” United States v. Doe, 465 U.S. 605, 616, 104 S.Ct. 1237, 1244, 79 L.Ed.2d 552 (1984); United States v. Mohney, 949 F.2d 1397, 1401 (6th Cir.1991); Earl v. United States, 124 U.S.App. D.C. 77, 80, 361 F.2d 531, 534 (1966). Therefore, in commanding the executive branch to exercise that statutory power, even for limited purposes, this court intrudes into an area preeminently the domain of the executive branch of government. See United States v. Bahadar, 954 F.2d 821, 825 (2d Cir.1992); see also 18 U.S.C. § 6003(a). Moreover, the mechanism the court creates for scrutinizing the prosecutor’s immunity decisions, in my view, imposes a difficult burden upon the executive branch and places the court improperly in the position of second-guessing whether immunity is appropriate in a particular ease. See United States v. Turkish, 623 F.2d 769, 776 (2d Cir.1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981).
Contrary to its expressed intention of adopting the stringent standard, set forth in Bahadar, for the court’s use of its coercive powers to force the government to grant immunity in certain rare cases, this court appears to adopt a much more lenient standard. Under the standard set forth in Baha-dar, the threshold requirement for forcing the government to grant a proffered defense witness immunity or risk dismissal is that “the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the Fifth Amendment.” Bahadar, supra, 954 F.2d at 826. Since, as the majority points out, the *347prosecutor in this case “has committed no wrongdoing in its treatment of the defense witness or an immunity grant,”2 under Ba-hadar, the defense failed to “vault [that] first hurdle.” See id Thus, assuming the efficacy of adopting the Bahadar approach, the claim for immunity must fail on this record, and no remand is required. See id. For these reasons and those which follow, while I join in Parts I through V of the opinion, I respectfully dissent from Parts VI-VIII.
II.
There are several relevant general propositions with which all seem to agree. The controlling statute, 18 U.S.C. § 6002 et seq., “does not require the government to grant a defense witness immunity.” Mohney, supra, 949 F.2d at 1401. Nor does the Fifth Amendment impose an obligation upon the prosecutor to grant immunity “whenever it seems fair to grant it.” Turkish, supra, 623 F.2d at 777; Bahadar, supra, 954 F.2d at 825. Although immunity remains “ ‘pre-emi-nently a function of the [executive [b]ranch,’” United States v. Salerno, 937 F.2d 797, 807 (2d Cir.1991) (quoting Turkish, 623 F.2d at 776 (other citations omitted)), two theories have developed under which courts have determined that the government might be required to grant defense witness immunity or risk sanction. “The first theory, rejected by most courts, allows immunity for defense witnesses when necessary for an effective defense.” Mohney, 949 F.2d at 1401; see also Virgin Islands v. Smith, 615 F.2d 964, 973-74 (3d Cir.1980). The second theory imposes such a requirement upon the government as a remedy for “prosecutorial misconduct.” Mohney, 949 F.2d at 1401; Bahadar, 954 F.2d at 826. It is not clear which theory the court adopts today, as the guideline established seems to comprise elements of both.
In Bahadar, the court set forth a three-part test for determining the circumstances under which the government would be required to grant immunity or risk dismissal of the case. These include: (1) that the court find that “the government has engaged in discriminatory use of immunity to gain a tactical advantage,” or by overreaching forced the witness to invoke the privilege; (2) the witness’ testimony must be “ ‘material, exculpatory, and not cumulative;’ ” and (3) the testimony must not be available from another source. Bahadar, supra, 954 F.2d at 826 (quoting United States v. Burns, 684 F.2d 1066, 1077 (2d Cir.1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983)). The court rejected the claim in Ba-hadar because the defense could not meet the first requirement. The court determined that the witness’ invocation of the Fifth Amendment, out of fear of prosecution for his prior inconsistent statements to government agents, resulted from the witness’ willingness to change his story and not from the prosecutor’s overreaching or discriminatory use of immunity. Id. The Bahadar test is a stringent one, which would allow court intervention into an area statutorily reserved exclusively to the executive branch only in extraordinary situations. See id:3
What appears to be a less stringent test is found in Smith, supra, which includes the following elements:
[I]mmunity must be properly sought in the district court; the defense witness must be available to testify; the proffered testimony must be clearly exculpatory; the testimony must be essential; and there must be no strong governmental interests which countervail against a grant of immunity.
615 F.2d at 972. Smith holds that a court has the power to order the prosecutor to confer immunity upon a defense witness if it finds “prosecutorial misconduct by the government’s deliberate intent to disrupt the fact finding process.” Id. at 975.4 Even absent prosecutorial misconduct, immunity *348may be granted under Smith if the potential witness can offer clearly exculpatory and material testimony and if the government has “no strong interest in withholding use immunity.” 5 Id. at 974; see also Turkish, supra, 623 F.2d at 776. The majority states at the outset that it favors the Bahadar approach; however, it suggests an inquiry which focuses upon the prosecutor’s ability to provide a “justifiable reason ... for not granting ‘use’ immunity” to the witness.6 This approach is more akin to the lenient standard adopted by the Second Circuit in Smith, which sanctions court intervention when “the government has no strong interest in withholding use immunity.” Smith, 615 F.2d at 974. Such an approach is fraught with difficulties, aptly outlined in Turkish and quoted in the margin.7 That the issues are difficult and the approaches are many does not preclude their consideration. However, these concerns dictate the wisdom of deferring their determination until there is a factual context which requires their resolution and the relevant legal issues have been presented for consideration in the adversary process.
III.
The resolution of a conflict between a witness’ Fifth Amendment privilege and a defendant’s Sixth Amendment right to compulsory process, which this court addresses in this case, has long been a troubling one. However, it is an area where there is clear law which resolves that conflict in favor of the witness’ right to remain silent. See Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972) (The power to compel testimony is subject to the exemption of testimony privileged under the Fifth Amendment.); Hoffman v. United States, 341 U.S. 479, 490, 71 S.Ct. 814, 819, 95 L.Ed. 1118 (1951) (The evils of compulsory self-incrimination transcend any difficulties that exercise of the Fifth Amendment privilege may impose upon society in the prosecution and detection of crime.); United States v. Cuthel, 903 F.2d 1381, 1384 (11th Cir.1990) (The conflict between a defendant’s right to compel testimony and a witness’ Fifth Amendment privilege has been resolved in favor of the latter.); Turkish, supra, 623 F.2d at 773-74 (The Sixth Amendment’s right to compulsory process does not displace a proper claim of privilege against self-incrimination.). In the context of a request for courts to compel defense witness immunity, most courts seem to have reserved any con*349sideration of court intervention for the rare case involving improper action by the prosecution which could be found to deny constitutional fairness. See, e.g., Mohney, supra, 949 F.2d at 1402; Turkish, 623 F.2d at 777; see also Earl, supra, 124 U.S.App. D.C. at 80 n. 1, 361 F.2d at 634 n. 1. Where there is evidence of improper conduct of the prosecution, traditional sanctions might be available to address the situation, at no risk of improper intrusion into an executive function. See Salerno, supra, 937 F.2d at 807-08. In light of the separation of powers issues involved when courts seek to intrude into an area statutorily reserved for the executive branch, the more stringent Bahadar standard, discussed in Part I of this opinion, appears to be the better approach. To the extent that the majority departs from that standard, I disagree.
In Bahadar, the court adopted, as the majority states that it does here, a “carrot and stick approach, leaving the immunity decision to the executive branch but interposing the judicial power to subject the government to certain choices.”8 Bahadar, supra, 954 F.2d at 826 (citing Salerno, supra, 937 F.2d at 807-08 (other citation omitted)). However, the prosecutor’s choice in Salerno was not between granting immunity to a defense witness or terminating the prosecution, and the court had no occasion to intrude into the executive function. The Salerno court ruled that the grand jury testimony of two exculpatory witnesses, which the government disclosed under Brady, could be used at trial since they were unavailable because of their assertion of the Fifth Amendment privilege against self-incrimination and the government declined to grant immunity. The court’s ruling was an evidentiary one, uniquely a judicial function, based upon the application and interpretation of Fed.R.Evid. 804(b)(1). 937 F.2d at 807. The choice facing the prosecutor, though arising out of the court’s decision, was not a coercive measure taken for the purpose of achieving that result. That choice was between granting immunity so that the witnesses would be available for cross-examination at trial or having only the grand jury testimony admitted. Thus, the Salerno court in referring to the “carrot and stick,” contemplated no deviation from the remedies available to address government misconduct. In that case, if the prosecutor preferred to have the opportunity to cross-examine the witnesses at trial, he could have granted the witnesses immunity. In Bahadar, as previously stated, the defense could not meet the first criterion for the court to take action to compel immunity. Bahadar, 954 F.2d at 826.
IV.
Finally, a review of the tape recording of the argument in this case will reveal that the government did not propose or approve the debriefing procedure adopted by the majority. In responding to a question by one member of the court, the prosecutor indicated simply that if a witness were tendered for debriefing in connection with a request for immunity, the government would want to avail itself of that opportunity. However, the prosecutor stated that she knew of no precedent which would require the government to investigate the case for the defense in that way. The prosecutor also stressed that (1) the court did not have the power to grant immunity or to require the government to grant immunity, particularly because of separation of powers considerations; and (2) the court need not address the issue in this ease because it was not raised by the facts. Therefore, the procedure the court adopts in this case cannot be attributed to any proposal by the government.
For the foregoing reasons, I respectfully dissent from Parts VI-VHI, except for paragraph 1 of section VIII, of the opinion of the court.
. See majority opinion, Part VI.
. Majority opinion at 341.
. Significantly, the court in Bahadar observed that
although our test for requiring the government to grant use immunity has been in place for at least eight years, we have yet to be presented with a case in which the defendant gets over the first hurdle, let alone succeeds entirely.
Id. at 826.
.I agree with the majority in rejecting the proposition that courts have the inherent power to immunize defense witnesses. See majority opinion at 339 and 340 note 4.
. The Smith court remanded for an evidentiary hearing because it determined that the record established that the defense could meet the requirements of either theory. Smith, supra, 615 F.2d at 974. However, Smith presented exceptional circumstances not presented here. The prosecutor with jurisdiction to prosecute the potential witness had offered to grant the witness use immunity provided the United States Attorney consented, a condition imposed as a matter of courtesy. Id. at 967. There was no apparent reason for the U.S. Attorney, who lacked jurisdiction to prosecute, to withhold consent. Therefore, it appears that ‘‘[t]his was simply an instance of a prosecutor interfering, for no apparent reason, to suppress evidence that was about to become available to the accused." Turkish, supra, 623 F.2d at 777.
. See majority opinion at 342.
. In commenting upon the Smith approach, the Turkish court observed:
Smith suggests two types of inquiry: whether the prosecutor’s opposition to defense witness immunity stems from "the deliberate intention of distorting the fact finding process,” or whether the prosecutor can present “strong countervailing interest,” to the defendant’s need for clearly exculpatory evidence. Either inquiry will propel a trial court into uncharted waters. Focusing upon the prosecutor's intent will often lead to exploration and premature disclosure of the pending status of an investigation against the witness. Moreover, a prosecutor without enough evidence to seek indictment of a witness may legitimately prefer to maintain his option to prosecute on the basis of later information. It cannot fairly be argued, where the prosecutor declines to consent to use immunily, that the absence of present intention to prosecute is evidence of intention to distort the fact-finding process. Alternatively, weighing the "countervailing interest" in not granting defense witness immunity will in all likelihood prove to be as elusive a task as formulating any meaningful standards for the assessment. In the extraordinary fact situation presented by the Smith case, ... the public interest in not granting defense witness immunity appears to be non-existent. But in most situations where defense witness immunity is likely to be sought, some legitimate opposing prosecution interest will exist, and constitutional fairness is not a satisfactory standard against which to assess such interests.
Turkish, supra, 623 F.2d at 776-77 (quoting Smith, supra, 615 F.2d at 968, 974).
. See majority opinion at 341.