According to a bombshell report by the Wall Street Journal, former National Security advisor Michael Flynn has advised the FBI and congressional officials that he would be interviewed/cooperate in exchange for immunity from prosecution. Investigators are probing the Trump campaign’s potential ties to Russia. Apparently, Flynn made the offer to the FBI and the House and Senate intelligence committees — but so far has “found no takers.” In the WSJ report, an unnamed official told the outlet the fact that he was seeking a deal like this is a sure sign that Flynn believes he may be in “legal jeopardy.”
On the other hand, Robert Kelner, Flynn’s attorney said in a statement: “Gen. Flynn certainly has a story to tell, and he very much wants to tell it, should the circumstances permit. … No reasonable person, who has the benefit of advice from counsel, would submit to questioning in such a highly politicized, witch-hunt environment without assurances against unfair prosecution.”
So what is true? What should we make of this latest decision by Flynn? Does it mean the Lt. General could have committed a crime, and wants protection? After all, when Clinton was under investigation, Flynn said on television that when you are given immunity that means that “you’ve probably committed a crime.” So does his immunity request mean he has even more damning dirt on President Trump and other campaign officials? Or was this a perfunctory move by Flynn’s lawyers, as they claim, to protect their client from any legal jeopardy whatsoever? LawNewz.com turned to legal experts who have direct experience dealing with the feds, and handling these type of immunity agreements. Below, you will find their responses when asked about what this all means. and whether it could implicate President Trump in anyway. Overall, most agreed that this move might very well have just been some skillful lawyering by Flynn’s team, and doesn’t necessary signal Trump or any other officials have anything to worry about… at least not yet.
“That said, the Trump Administration better hope that’s all it is,” one expert told us.
Elkan Abramowitz, high profile white collar criminal defense attorney:
In light of the reported involvement of Flynn in the subject matter of the investigations, it is not at all surprising that he is seeking immunity from Congress before he testifies. Congress needs to coordinate any decision on granting him immunity with law-enforcement personnel, because sometimes congressional immunity can negatively impact a subsequent prosecution as happened in the Oliver North case..
I think it is fairly standard for someone under investigation to seek immunity if the authorities want him to testify. He certainly is a high enough potential target that it would be unlikely for him to get immunity so early in the investigation…
It could only be trouble for President Trump if Flynn testified that he and Trump had incriminating conversations. I agree that the optics in any event are bad for Trump.
Mark Zaid, National Security Expert and attorney:
I can’t imagine if I were his lawyer that I wouldn’t ask for immunity regardless of whether he did anything illegal or not, even if just a perception. A favorite tactic of the FBI is to accuse someone of a false statement because to many law enforcement officers and prosecutors an inconsistency is interpreted as lying. That is then used as leverage to force an individual to comply in other ways, or to be punished for crimes that perhaps cannot be proven, regardless of the validity.
So at this early stage I would suggest the request for immunity is more about skillful lawyering than anything else. That said, the Trump Administration better hope that’s all it is.
Robert Barnes, California Trial Attorney:
Every defense lawyer does it, especially if he thinks the media speculation last week was really a leaked idea from somebody against Trump. He’s trying to pull a Huma — ask for carte blanche immunity for mistakes Flynn may have made (likely unrelated to Russia inquiry, but connected to his belated Turkey lobbying disclosure) in exchange for the lure of testimony Flynn might give. Flynn then doesn’t give any testimony of consequence since he now has full immunity. The reason is because his only risk is perjury once given immunity, so you don’t say anything adverse about anyone else when a smart defense lawyer might convince someone was perjury. The government is well aware of this, and OTHER than Hillary Clinton’s case, they never do this without a proffer. Even then, they usually only give use-and-fruits immunity that is worthless against unrelated charges. No sane lawyer lets his client proffer 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. Flynn is actually sending word he is going to take the 5th on everything (a smart decision given the whole town is out to crucify him), and won’t talk without 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.
Henry E. Hockeimer, former federal prosecutor:
Since he’s apparently the one putting out the sign “info for immunity” 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. They may also agree to hear him out and perhaps give him some amount of leniency but insist on a plea to something…
The other thing to consider is that in a high profile matter like this, his lawyer may simply be telling the government if you want to talk to my guy he’s going to need assurance he won’t be charged – i.e. Immunity. Regardless of whether there is truly something there.
Bill Thomas, former federal prosecutor:
First, if I was his attorney I normally would be laying low hoping that no one asked me anything about anything. The way it generally works is that you are asked to give a statement or provide testimony and then you would seek some sort of immunity for giving that statement. Note that this is what I would do whether I viewed my client as having criminal exposure or not. Not to digress too much but I have represented clients in cases where the government had assessed the facts incorrectly and I knew that any statement given would contradictory to how they viewed the facts and evidence. In those cases you still want to ask for immunity in case they don’t believe your client and now want to consider some false statement or perjury charge. (Once law enforcement has a view of things — its hard to disabuse them of their determinations).
The other thing that makes it difficult to answer your question is this. There are different types of immunity —– use immunity and transactional. Defense attorneys would prefer to get transactional immunity because it protects you (precludes you) from being prosecuted for a crime that you have committed. Use immunity only protects you from using your statement/testimony against you. It doesn’t preclude the government from making derivative use – that is they can follow the leads (or information) provided in your statement and use that to prosecute you.
As indicated above, its unusual to lead with an offer to testify or give statements in return for immunity. My assumption here is that his attorney is asking for full (or transactional immunity). This signals to me that the attorney has evaluated the situation and that there is the potential for big problems for the client down the road. In return for these interviews or statements, he wants to avoid prosecution all together. This is a big deal because his attorney is saying to the world “Hey, my guy did something and we want a pass.” It’s an interesting tactic. Often as a defense attorney you want to get third parties so interested in the information you have that those third parties will pressure prosecutors to give that immunity, or some sort of favorable deal.
LawNewz.com will add more responses from our legal experts as we get them in. This article has also been updated to include Flynn’s lawyers statement.