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."
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)":
As an experienced lawyer, Kelner will know that the Justice Department would never grant immunity for testimony on these terms. Prosecutors would first require that Flynn submit to what's called a proffer session in which Flynn would agree to tell everything he knows in exchange for the prosecutors agreeing not to use his statement against him. Only after the prosecutors heard what Flynn could offer in terms of evidence against others, and had an opportunity to assess his credibility, would they be willing to discuss any grants of immunity or a cooperation deal.... If he had something good, Flynn and his lawyer would approach the prosecutors quietly, go through the proffer process in confidence, and reach a deal. Why? Because prosecutors have an interest in keeping their investigation secret, and Flynn's lawyer knows that. The last thing Flynn's lawyer would do if he thought he had the goods would be to go public, because that would potentially compromise the criminal inquiry and would certainly irritate the prosecutors, the very people Flynn's lawyer would be trying to win over. [Whiting, Just Security]
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.