Apr 3, 2017

Flynn's immunity request isn't what it seems

Evan Vucci / AP

When the Wall Street Journal broke the news last week that former national security advisor Michael Flynn was offering to testify on Russia in exchange for immunity, many commentators were quick to assume it meant he'd become a turncoat — prepared to reveal highly damaging information about President Trump in order to save himself.

A smart piece explains why the reality is probably the precise opposite. Writing at the blog "Just Security," Alex Whiting, a Harvard Law professor who's previously worked at the International Criminal Court, says the fact that Flynn's lawyer made the plea so publicly suggests he's not willing to reveal a single thing of consequence.

Highlights from Whiting's article:

  • "Flynn's lawyer, Robert Kelner of Covington & Burling... tweeted out a statement teasing that 'General Flynn certainly has a story tell, and he very much wants to tell it, should the circumstances permit'...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.
  • "The fact that Flynn and his lawyer have made his offer publicly suggests that he has nothing good to give the prosecutors (either because he cannot incriminate others or is unwilling to do so).
  • "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.

Between the lines: Whiting says he suspects Flynn's lawyer is really targeting Congress. "He is hoping that one of the Congressional committees will take the bait and grant him immunity in exchange for his testimony."

Flynn's dream legal scenario: "[He] gets immunity, his testimony in Congress gets aired and reported everywhere, and it becomes virtually impossible for prosecutors to bring a case against him."

What Whiting bets will happen: "It is not going to work. The Justice Department will tell Congress that a grant of immunity at this stage could compromise its ongoing criminal investigation."

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