Michael Flynn is shopping for immunity deals. Here's what that might mean for Flynn, and President Trump.
Legal experts weigh in on the latest twist in the Russia investigation
We already know that Michael Flynn believes seeking immunity from prosecution in return for testifying in an investigation means "you have probably committed a crime." But now that Flynn, President Trump's first, brief national security adviser, is reportedly seeking immunity himself to talk with the FBI and House and Senate intelligence committees investigating Trump's ties to Russia, what does that mean for Flynn — and for Trump?
It doesn't look great for Flynn, legal experts say, but it isn't necessarily terrible for Trump. Essentially, everybody needs to calm down and let the legal dance play out.
First, though Flynn "certainly has a story to tell, and he very much wants to tell it, should the circumstances permit," his lawyer, Robert Kelner, said Thursday night, he has so far "found no takers," The Wall Street Journal reports. Flynn's suggested deal "has been met with initial skepticism," The Washington Post says. Investigators are "unwilling to broker a deal," The New York Times explains, "until they are further along in their inquiries and they better understand what information Mr. Flynn might offer as part of a deal."
Subscribe to The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.
Sign up for The Week's Free Newsletters
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
There are basically two types of immunity Flynn could get. Congress can only offer him "testimonial" or "use" immunity, which would prevent his testimony from being used against him in any prosecution. The Justice Department can grant Flynn full or "transactional" immunity for any potential crimes committed. Congress doesn't usually grant immunity without a green light from the Justice Department, because even testimonial immunity would make it very difficult to prosecute Flynn — a situation that arose in the Iran-Contra case, where the immunity Congress granted Oliver North was used to overturn his later conviction.
The Senate clearly does not ''want to screw up a possible prosecution," former federal prosecutor Peter Zeidenberg tells The Washington Post. At the same time, as in the North investigation, the Senate could decide "there may be things more important than getting a prosecution of Flynn," like learning the scope of the Trump team's ties to Russian officials. "That is a compelling and urgent need," he adds. "A prosecution of Flynn could take several years. I wouldn't want them to wait that long to find out what Flynn knows."
Jeffrey Toobin was associate counsel to the Iran-Contra and Oliver North prosecutor, Edward Walsh, and he explained on CNN Thursday night how Congress and the Justice Department will feel pressure to coordinate on the Flynn case:
Toobin also touched on the "proffer" stage of most immunity negotiations. Alex Whiting, a former federal and International Criminal Court prosecutor who now teaches at Harvard, explains the proffer process at Just Security — and why it suggests the loud overture from Flynn's lawyer is "not a serious offer, and it suggests he has nothing to say (or is not willing to say anything that would incriminate others)":
Flynn does appear to be vulnerable to prosecution on fronts other than Russian election meddling, as T. R. Ramachandran argues in a curated series of tweets. But Harvard national security expert Juliette Kayyem — who created a stir last week when she suggested Flynn was about to start cooperating with the FBI — says it really isn't clear what Flynn is willing to proffer:
"The idea that this goes directly to the Oval Office, we're not there yet — these cases take a long time," Kayyem said. "But certainly, this is basically horrible news for the White House at this stage."
"No sane lawyer lets his client proffer," California trial attorney Robert Barnes tells Legal Newz, "because a proffer can be used against you if you ever choose to testify in your own defense, except in special cases where you have complete confidence your client has little risk." That doesn't fit Flynn, so he's actually signaling that "he is going to take the fifth on everything," Barnes adds, unless he's granted "carte blanche immunity, which he and his lawyer know the government is never going to give (because it requires specialized approvals it won't get). What looks like a hostile signal to Trump is actually a self-defense signal that Flynn won't be saying anything at all."
Mark Zaid, a lawyer who specializes in national security cases, agrees that, "at this early stage, I would suggest the request for immunity is more about skillful lawyering than anything else." Still, he cautions at Legal Newz, "the Trump administration better hope that's all it is." Since Flynn is the one "putting out the sign 'info for immunity,'" adds former federal prosecutor Henry E. Hockeimer, "this may be more about a guy simply trying to avoid prosecution. If the government isn't coming to him it may be because they already know what he would say."
Whiting says it looks to him like "Flynn's lawyer is really targeting Congress" and "hoping that one of the Congressional committees will take the bait and grant him immunity in exchange for his testimony" so the feds won't be able to touch him. But using the Oliver North tactic "is not going to work" for Flynn, he predicts, and Congress has already signaled that it isn't interested. In the end, Whiting says, "the ploy feels desperate, indicating that Flynn may not have much to offer. And the very fact that Flynn's lawyer is making a play for immunity at this stage suggests that he has some fear that his client faces real criminal exposure."
That's bad for Flynn, but a possible silver lining for a White House that can use all the good news it can muster.
Sign up for Today's Best Articles in your inbox
A free daily email with the biggest news stories of the day – and the best features from TheWeek.com
Peter has worked as a news and culture writer and editor at The Week since the site's launch in 2008. He covers politics, world affairs, religion and cultural currents. His journalism career began as a copy editor at a financial newswire and has included editorial positions at The New York Times Magazine, Facts on File, and Oregon State University.
-
Today's political cartoons - November 2, 2024
Cartoons Saturday's cartoons - anti-fascism, early voter turnout, and more
By The Week US Published
-
Geoff Capes obituary: shot-putter who became the World’s Strongest Man
In the Spotlight The 'mighty figure' was a two-time Commonwealth Champion and world-record holder
By The Week UK Published
-
Israel attacks Iran: a 'limited' retaliation
Talking Point Iran's humiliated leaders must decide how to respond to Netanyahu's measured strike
By The Week UK Published
-
US election: who the billionaires are backing
The Explainer More have endorsed Kamala Harris than Donald Trump, but among the 'ultra-rich' the split is more even
By Harriet Marsden, The Week UK Published
-
US election: where things stand with one week to go
The Explainer Harris' lead in the polls has been narrowing in Trump's favour, but her campaign remains 'cautiously optimistic'
By Harriet Marsden, The Week UK Published
-
Is Trump okay?
Today's Big Question Former president's mental fitness and alleged cognitive decline firmly back in the spotlight after 'bizarre' town hall event
By Harriet Marsden, The Week UK Published
-
The life and times of Kamala Harris
The Explainer The vice-president is narrowly leading the race to become the next US president. How did she get to where she is now?
By The Week UK Published
-
Will 'weirdly civil' VP debate move dial in US election?
Today's Big Question 'Diametrically opposed' candidates showed 'a lot of commonality' on some issues, but offered competing visions for America's future and democracy
By Harriet Marsden, The Week UK Published
-
1 of 6 'Trump Train' drivers liable in Biden bus blockade
Speed Read Only one of the accused was found liable in the case concerning the deliberate slowing of a 2020 Biden campaign bus
By Peter Weber, The Week US Published
-
How could J.D. Vance impact the special relationship?
Today's Big Question Trump's hawkish pick for VP said UK is the first 'truly Islamist country' with a nuclear weapon
By Harriet Marsden, The Week UK Published
-
Biden, Trump urge calm after assassination attempt
Speed Reads A 20-year-old gunman grazed Trump's ear and fatally shot a rally attendee on Saturday
By Peter Weber, The Week US Published