Gather ‘round the firepit, campers. Michael Flynn, who resigned as National Security Adviser on February 13, 2017, after 24 days on the job, has “a story to tell.” I don’t know about you, but I’m anxious to hear his narrative, even without s’mores and juice boxes.
According to his attorney, however, before he unburdens himself, Flynn wants “assurances against unfair prosecution.” (Wait, what? Does this mean Flynn is agreeable to “fair” prosecution? Um, okay...) He’s already asked for immunity from the Senate and House Intelligence Committees. The Senate Committee quickly rejected his request - for the time being. The House Committee hasn’t acted on it and doesn’t seem disposed to grant it now.
It isn’t known yet whether Flynn’s made a request for immunity to the Department of Justice. DOJ doesn’t usually comment on or even acknowledge such requests.
Immunity for what?
Given the numerous allegations about his conduct that might implicate federal criminal statutes, Flynn would probably want immunity from federal prosecution for at least these activities:
- His admitted failure to register timely as an agent of a foreign government (Turkey);
- His receipt of classified briefings from U.S. government intelligence agencies while being an unregistered agent for that same foreign government;
- His acceptance of payments from RT, an agency of another foreign government (Russia); and
- His alleged participation in planning discussions with agents of a foreign government (Turkey, again) to kidnap an American resident and return him to that government.
Moreover, these activities must be viewed in conjunction with his disclosures - or lack of disclosures - during his FBI background check for employment as National Security Adviser or during the FBI investigation started last summer concerning possible collusion between Russia and the Trump campaign. If Flynn lied to the FBI about any of these activities, he can be prosecuted for the lies alone.
So, it’s not surprising that he would seek immunity. Doubtless, he would like to have unconditional immunity from prosecution for all of these activities.
What kind of immunity?
I’m not going to present here a detailed backgrounder on the species of immunity, but they’re called “Use Immunity,” “Transactional Immunity,” “Informal Immunity,” and “Derivative Use Immunity.” There are concise summaries in the U.S. Attorneys’ Criminal Resource Manual. It suffices here to say that the different kinds of immunity offer, to witnesses to criminal activity who might be criminals themselves, different amounts and kinds of protection from prosecution.
An important thing to understand is that there are circumstantially specific benefits, costs, and risks in granting immunity to a witness to, or participant, in criminal activity. Congress and prosecutors usually weigh these before granting any kind of immunity, even the most limited.
On the one hand, by granting immunity, Congress or a prosecutor might gain a complete picture - otherwise unavailable - of a criminal activity of substantial public significance. Congress and/or the prosecutors also might gain the opportunity to implicate and prosecute more important actors in a criminal enterprise.
On the other hand, by granting immunity to a witness-participant, a prosecutor might inadvertently forgo the opportunity to prosecute the central actor in a criminal enterprise (if it’s the witness given immunity) or discover that the immunized witness, while a bad actor, has very little useful information. That’s why prosecutors require persons seeking immunity to make a “proffer” - provide information about the crimes they’ve witnessed or committed - before deciding whether to grant immunity.
A grant of immunity would also require prosecutors to “box up” - figuratively - the existing evidence from Flynn, in case they ever had to show a judge that they did not use his testimony or derive any prosecutorial advantage from it. According to one former Assistant U.S. Attorney to whom I spoke, boxing up Flynn’s testimony would be a “huge hassle that isn’t worth the risk now.”
There’s also another potential pitfall ensuing from grants of immunity. Congressional grants of immunity can interfere with prosecution of a witness-participant, or even lead to nullification of a conviction. This occurred in the late 1980s, in the Iran-Contra scandal, when John Poindexter and Oliver North received Congressional immunity for their testimony on the scandal, were prosecuted for their participation, and had their convictions overturned because the courts concluded that their immunized Congressional testimony might have been used improperly to convict them.
Guidelines for immunity
To manage decisions on immunity, the Department of Justice has developed a detailed set of guidelines and instructions federal prosecutors must consider before granting any kind of immunity to a witness.
These Include the following considerations:
- The importance of the investigation or prosecution to effective enforcement of the criminal laws;
- The value of the person's testimony or information to the investigation or prosecution;
- The likelihood of prompt and full compliance with a compulsion order, and the effectiveness of available sanctions if there is no such compliance;
- The person's relative culpability in connection with the offense or offenses being investigated or prosecuted, and his or her criminal history;
- The possibility of successfully prosecuting the person prior to compelling his or her testimony;
- The likelihood of adverse collateral consequences to the person if he or she testifies under a compulsion order.
In Flynn’s case, there are easily provable and legally serious acts already in the record which a prosecutor could consider for charges - the failure to register, the briefings while unregistered, the receipt of payments from Russian governmental agencies. Moreover, these aren’t “mere” violent or financial crimes; they implicate matters of national security - “The importance of the investigation or prosecution to effective enforcement of the criminal laws.”
It seems likely, therefore, that DOJ, before agreeing to any form of immunity, will take a long, slow, and careful look at the evidence already available about Flynn and hear from him at length in the form of a proffer.
And, given the lack of leverage Flynn has because there is already so much evidence available of prosecutable conduct and substantial allegations of serious national security violations, DOJ prosecutors might prefer to pursue a different path. They could impanel a grand jury, present the slam-dunk parts of the case to it, procure an indictment on multiple charges, and require Flynn to negotiate a plea deal. In other words, the most “assurance” Flynn might get for unstinting cooperation is an opportunity to plead to fewer than all the possible charges (one or two felonies), and recommendations from prosecutors for minimum sentencing for any offenses to which he pleads, minimum-security confinement, and a smallish fine.
A potential plea agreement is also subjected to close analysis based on detailed guidelines and considerations, including these:
- The defendant's willingness to cooperate in the investigation or prosecution of others;
- The defendant's history with respect to criminal activity;
- The nature and seriousness of the offense or offenses charged;
- The defendant's remorse or contrition and his/her willingness to assume responsibility for his/her conduct;
- The desirability of prompt and certain disposition of the case;
- The likelihood of obtaining a conviction at trial;
- The probable effect on witnesses;
- The probable sentence or other consequences if the defendant is convicted;
- The public interest in having the case tried rather than disposed of by a guilty plea;
- The expense of trial and appeal;
- The need to avoid delay in the disposition of other pending cases; and
- The interests of the victim, including any effect upon the victim's right to restitution.
Pardon me, Mr. Trump
The wild card in all of this is the possibility that the Current Occupant (White House) might grant a presidential pardon to Flynn. And maybe not just to Flynn. The Current Occupant might want to pardon Manafort, Stone, Jared Kushner, and everyone else who’s also had Fun With Russia. Remember: there’s no legal trigger required for a pardon. President Ford pardoned President Nixon after the latter resigned but before Nixon had been charged with any crimes.
Setting the aside the Pardon Wild Card, it seems safe to say that Flynn faces a long hard march before he convinces either Congress or the Department of Justice to grant him immunity or let him have any kind of plea agreement.
Meanwhile, he will endlessly see and hear his Schadenfreude Moment at the Republican National Convention, leading chants of “Lock her up!” However Flynn might settle with the Department of Justice, he’s already been tried and convicted by the Department of Karma. From DOK, he's earned a life sentence of mockery without any hope of parole.