Michael Flynn and the immunity game
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This article is not about the potential criminal liability of former National Security Advisor Michael Flynn, if any.

Nor is it about whether Flynn is in a position to provide meaningful cooperation and information to the Justice Department or House or Senate Intelligence committees about Donald TrumpDonald John TrumpProsecutors investigating Trump inaugural fund, pro-Trump super PAC for possible illegal foreign donations: NY Times George Conway: Why take Trump's word over prosecutors' if he 'lies about virtually everything' Federal judge says lawsuit over Trump travel ban waivers will proceed MORE or anyone associated with his campaign.

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Rather it’s about the strategy he – or more likely, his lawyer – has chosen. Flynn did something those of us involved in the criminal justice system have rarely, if ever, before seen – he publicized his request for immunity, his attorney writing: “General Flynn certainly has a story to tell.” Yet, counsel continues, Flynn “wants” to tell it, “should the circumstances permit.”

 

Now, neither I nor the many commentators who have discussed this episode truly know what Flynn has to offer or precisely why he would publicly ask for immunity – particularly when he himself has previously said, when talking about Hillary ClintonHillary Diane Rodham ClintonSanders, Warren meet ahead of potential 2020 bids Hillicon Valley — Presented by AT&T — New momentum for privacy legislation | YouTube purges spam videos | Apple plans B Austin campus | Iranian hackers targeted Treasury officials | FEC to let lawmakers use campaign funds for cyber Comey’s remarks about Trump dossier are not credible, says former FBI official MORE, that no one asks for immunity unless they’re guilty of something.

A stupid comment by Flynn, to be sure. Not because he is now seeking immunity; rather, as he should well know, far too many actually innocent people are wrongly, or even falsely, accused and even convicted of crimes and obtaining immunity is the best road to avoid a wrongful prosecution and conviction. Having said that, a demand for immunity by a public official may actually be the quickest road to becoming a former public official.

And Flynn, the former public official, has asked for immunity. There is no reputable (or rational) prosecutor who would agree to immunity without knowing first what the witness would have to say. As prosecutors like to put it, “I’ll never buy a pig in a poke.”

Meaning, the prosecutor needs to hear from the witness who is given informal, extremely limited immunity, or at least his lawyer (“a lawyer’s proffer”) what testimony the witness will be able to give.

So, it is unimaginable that a witness of Flynn’s stature can simply tell the public that he has something to say and, without more, hope to get immunity. Indeed, what prosecutor in his right mind would be interested in giving Flynn a pass unless he could “hand up” significant and material information, or someone higher up the food chain?

So, you say, Flynn might try to get immunity instead from the House Intelligence Committee – after all, the Committee has arguably chosen to “vigorously” probe interactions between the Trump campaign and Russian officials. Same problem though – and there’s important precedent which explains why no credible House (or Senate) Committee would give him immunity, at least at this stage of the game, and certainly without knowing in some detail what he had to offer.

In the 1980’s, a joint House/Senate Committee was investigating the Iran-Contra scandal and accorded immunity to Col. Oliver North and NSA Director John Poindexter. Before they testified, the Iran-Contra Independent Counsel, Lawrence Walsh, did what he could to insure that his prosecution of them would not be tainted by the public – and televised – Congressional hearings. You see, the fact that they were immunized by Congress meant that that testimony could not be used (or used to shape, directly or indirectly) the prosecution’s case at trial. North and Poindexter were both convicted, but guess what?

The Court of Appeals questioned whether the trial court sufficiently required the prosecutor to establish that witnesses’ exposure to the immunized Congressional testimony didn’t taint their trial testimony and reversed their convictions. Their indictments were ultimately dismissed. 

So let’s understand this immunity business; it’s not easy. The kind of immunity under a so-called “witness compulsion order” that the Congress will give a witness, indeed the same that a federal court may order in a criminal investigation or prosecution, is called “derivative use immunity.”

After Congress grants such immunity, a prosecutor who seeks to prosecute the witness may not use the actual testimony he gave. That’s the easy part. But also, the prosecutor cannot use anything that derived directly or even indirectly from that testimony.

It is a very heavy burden for the prosecutor to show that nothing – not a single material item – resulted indirectly from the Congressional, immunized testimony. Indeed, as the Court of Appeals told us in North, the prosecutor must show that the immunized testimony did not taint “any aspect” of the case – whether in its presentation to the grand jury or at trial.

Even if a criminal trial witness was exposed to the previously televised testimony of the trial defendant who had been immunized by the Congress, the prosecution might be tainted (even if he didn’t refer at trial to what he saw on television). 

Now, there is great buzz over what Flynn might have to offer, yet it may well be that all he has to offer is about himself – there’s considerable reportage over his failure to make appropriate disclosures of his foreign contacts. I, like pretty much everyone else, have no idea.

But if I were his criminal lawyer I might, indeed, want to create a public energy or, call it, drum roll that would motivate the House Intelligence Committee to grant him immunity for his testimony – the kind of immunity that would potentially block, or at least shed doubt on, a criminal prosecution (as in the case of North and Poindexter).

This especially if Flynn’s testimony would only implicate himself in any wrongdoing, especially criminal wrongdoing. In truth, though, could I (or anyone, no matter how able) really pull it off – persuading the House Committee to go so far as to ruin any chance of a potential criminal prosecution of the very individual they would want to immunize? 

I don’t think so – Congress recalls the North/Poindexter hearings too.

So maybe there is something else brewing by Flynn and his reportedly very able lawyer. Maybe he was simply trying to be creative, by launching the very kind of distraction that Flynn’s (briefly) former boss is so good at – distraction as disruption. 

Maybe he’s looking to get the core base of Trump support to conclude that the President has been right all along – that the “System” is rigged against him. Perhaps Flynn simply wants to tell the world there is “no there there”, i.e., nothing happened. Isn’t that the best defense for Flynn and, by the way, the President who has – typical of him – tweeted that Flynn should ask for immunity in this “witch hunt.” [insert 3/31 tweet]

It’s a high stakes poker game, indeed. We’ll have to wait to see how well Flynn, and his lawyer, play the game. And just how well the Committee’s Democrats – not to mention the Senate Intelligence Committee’s more bipartisan membership – respond to this ploy. 

They all would look pretty bad indeed if Flynn were to testify under a grant of immunity and offer nothing of substance against the President or his insiders. And even worse if the only thing incriminating that Flynn would have to say would be about himself.

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. An adjunct professor at Fordham Law School, he regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications. Dale J. Degenshein of Stroock assisted in preparing this article.


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