As far as spin goes, President Trump’s tweet about his former national security adviser Michael Flynn on Friday morning isn’t terrible.
That spin runs contrary to the assumptions of many fervent opponents of the president. As readily as Trump, Flynn and his allies rushed to criticism when aides to Hillary Clinton sought immunity in the probe of her email server, Trump’s opponents seized on the suggestion of an immunity deal as evidence that Flynn necessarily had secrets to hide.
The truth is probably far more subtle than that, according to Todd Bussert, a federal criminal defense attorney in Connecticut who spoke with The Washington Post by phone Friday morning.
“It’s not unusual for anybody who’s the subject of a federal investigation to want immunity before speaking to federal authorities,” Bussert said. “Even if they’ve done nothing wrong, there’s this fear that something they say could be used against them.”
But, of course, it’s not usually in the government’s interest to grant that immunity. For one thing, the government is in the business of prosecuting those guilty of crimes, not simply in hearing their stories. For another, granting someone immunity doesn’t guarantee that they will tell the truth — having immunity may make people more likely to couch or frame their words in whatever way they wish.
When immunity is granted, it’s often with an eye toward reeling in a bigger fish — which is why Trump critics have seized on the idea. But as Bussert noted in our conversation, that also makes Flynn’s request for immunity sort of an all-or-nothing deal: Either he’s got something that can take down the president or he has nothing that will take down anybody, since there aren’t many bigger fish than a top adviser to the president of the United States.
The government isn’t going to simply give immunity just to hear a confession. That’s not how such agreements work anyway; prosecutors only grant immunity once they know what information the person has. “You would have a difficult time seeing a scenario whereby they would be willing to look the other way if they think he engaged in criminal misconduct,” Bussert said. “They might say, ‘Come in and help yourself. Come in to a cooperation agreement and we’ll help you at sentencing — but we’re not going to simply let you walk away from this.’ ”
But, he added, “What a congressional committee might feel could be completely different.” And that’s key.
Remember: Defense attorneys generally are quick to advise clients not to talk to prosecutors at all. That Flynn’s attorney publicly demonstrated his willingness to “tell his story” under the cover of immunity gives us a hint of what the strategy might be. As Alex Whiting also noted at the blog Just Security, Flynn’s attorney may be hoping that Congress, not prosecutors, grant him immunity before he tells them anything. Congress can’t make Flynn immune from prosecution, but lawmakers can make his testimony immune from being used against him — as has famously been done in the past.
In 1990, a federal appeals court vacated three convictions against Oliver North, a former Reagan administration official who had been caught in the Iran-contra scandal several years earlier. Convicted of bribery, destruction of documents and obstructing a congressional inquiry, he received a suspended sentence. Those convictions were overturned, however, because North had been granted immunity for his testimony before Congress as part of its investigation into the scandal. While that testimony wasn’t used as part of North’s criminal prosecution, the court determined that it may have tainted the evidence that was included. In 1991, the convictions were thrown out.
“Everyone familiar with these proceedings has recognized the difficulties presented by the grant of immunity by Congress,” prosecutor Lawrence Walsh told the New York Times when the appeals court decision was announced.
Flynn’s attorney may be hoping to do the same thing. Get a blanket immunity from a congressional committee. Tell the committee what you know, which may or may not be anything of any significance. Let that immunity then muddy the waters around any criminal inquiry. Since the North incident, Bussert said he wasn’t aware of any fixes that could prevent the same thing from happening again — after all, we’re talking about two independent branches of government. “Strategically,” he said, “it makes sense.”
If Flynn wants to get immunity from a congressional committee, one thing that might help is the perception that he’s being targeted unfairly out of political motivations. If the Republicans who run investigatory committees are convinced that there’s an unfair effort to impugn Flynn, they might be more willing to grant him immunity so that he can speak freely without worrying about partisan repercussions.
You know what might help reinforce that concern among Republicans? A tweet to that end from a Republican president.
