The Immunity Dance

What should we make of the ousted National Security Adviser's offer?

Former National Security Adviser Michael Flynn’s offer to testify in exchange for immunity is the first step in an intricate Immunity Dance.

What may appear to be a straightforward attempt by a witness to protect himself is likely to play out through a haze of mixed and hidden motives and objectives.

Let’s start with the principal dancer, Flynn.

Why is Flynn asking for immunity?

We don’t know, and we shouldn’t jump to conclusions. But there are some intriguing possibilities.

Last year, Flynn famously declared that if you’re asking for immunity, “you’ve probably committed a crime.” It’s tempting to turn this back on him and say that his request for immunity must be an admission that he has committed a crime.

But just because Flynn has a moronic viewpoint doesn’t mean we should.

The most innocent explanation might be that he knows that the congressional investigations have been highly politicized. His testimony could be subject to differing interpretations, some innocent and some not.

If there’s the slightest chance that his testimony could lead to criminal prosecution, Flynn has to play it safe. He has a target on his back, and any lawyer worth his salt would advise Flynn not to testify without immunity.

Just because Flynn has a moronic viewpoint doesn’t mean we should.

At the other end of the spectrum, Flynn may be looking for an escape hatch from serious criminal behavior that implicates others, including Trump. For instance, he may have participated in a scheme to grant favors to Russia in exchange for Russia’s assistance in getting Trump elected. That could give rise to all kinds of criminal liability, some of it carrying long prison terms.

If Flynn’s request for immunity is granted, it probably wouldn’t totally insulate him from prosecution. A grant of “use” immunity would mean that his testimony could not be used against him in court, not that he couldn’t be prosecuted at all.

But even that would be of great value to Flynn. Without his testimony, prosecutors may not have enough to charge him. Even if they did, they would have to be extremely careful to rely exclusively on evidence obtained independently from Flynn’s immunized testimony. Criminal convictions, including the conviction of Oliver North for crimes connected to the Iran-Contra scandal, have been reversed because prosecutors have been unable to convince judges that their evidence wasn’t tainted by immunized testimony.

Consider also the likely consequence of having to testify without immunity. If Flynn wants to protect himself without immunity, he will have to take the Fifth.

Say what you want about how nobody should assume people are guilty just because they invoke their sacred Constitutional rights under the 5th Amendment. It’s the right of every American, blah, blah, blah.

Nobody believes it. Well, maybe law school professors. Everybody else hears “I take the Fifth” and thinks “Guilty!”

That’s reason enough for somebody in Flynn’s position to want immunity. But consider yet another intriguing possibility.

Flynn might not even want immunity. His request for immunity could be just for show. If he has committed a major crime involving collusion with a foreign power, he may know that he can’t testify, with or without immunity. By having his immunity request rejected, Flynn can take the Fifth and, at the same time, insist that he really wanted to testify, but couldn’t get immunity to protect himself from a witch-hunt.

If that is his game, he could easily sabotage his own immunity request by pretending that he doesn’t know anything valuable enough to warrant a grant of immunity.

Too convoluted? Maybe so. But remember that this guy is widely recognized as one of the craftiest, most sophisticated intelligence officers of his generation. “Convoluted” is right in his wheelhouse.

See what I mean by intriguing possibilities?

Not only do we not know why Flynn wants immunity, we don’t even know if he wants it.

Enough about Flynn. Let’s take a look at the other dancers.

Will the congressional committees grant Flynn immunity?

We don’t know the answer to that, either. But we know who the players are, and we can expect them to act in accordance with their interests.

The congressional committee members are going to worry not only about their investigations, but also about their reputations and political futures.

The FBI and the DOJ want to make sure that their criminal investigations won’t be damaged by immunizing a target.

And Trump, who has no official say in whether Flynn gets immunity, may nevertheless have the most at stake.

All of these stakeholders will play a role in deciding whether to accept Flynn’s request for immunity.

Congressional committees, for the most part, want his testimony because it can help their investigations get to the bottom of Russiagate. I say “for the most part” because not all members share the same agenda. While everybody in Congress pays lip service to “following the facts wherever they may lead,” some of them are lying.

The recent antics of Devin Nunes, for instance, suggest that he is more interested in protecting Trump than in conducting a legitimate investigation. Others may share that objective. If that is indeed the case, some will oppose granting immunity just to keep Flynn’s mouth shut.

The members who genuinely want to obtain Flynn’s testimony will be inclined to grant immunity. But they will have to be careful not to do so too casually. If they grant immunity and get no bombshell testimony in return, they will look like dupes. Not a good look for a politician.

Keep in mind, too, that what people say they want is not always what they really want. But you already knew that, didn’t you?

Take Trump. Trump has made a great show of supporting a grant of immunity for Flynn. That must mean that Trump knows that Flynn’s testimony will exonerate him, right?

Nope. Trump may be publicly supporting immunity while, at the same time, privately sending signals to his supporters to vote against it. If Flynn’s immunity request is denied, Trump will tell the world that his enemies don’t want to find the truth because it will show that he didn’t do anything wrong.

On the other hand, if Flynn gets immunity and his testimony implicates Trump, Flynn will morph into a different character on the Trump show. Say goodbye to “Wonderful Man” Michael Flynn. Meet “Lyin’ Mike.”

Trump’s a dancer, too.

Anyway, once all of this plays out, a decision will have to be made either to grant immunity or not.

As I discussed in a previous article (“If Flynn Gets Immunity, His Testimony Could Lead to Trump’s Impeachment”), the first step in making that decision will be to get a preview of Flynn’s testimony.

If it looks like Flynn is going to provide bombshell testimony, especially if it leads to Trump, most members will support granting immunity.

If it looks like the most Flynn has to offer is testimony about low or mid-level crimes that don’t implicate anybody higher up, such as filing false government disclosures or lying to the FBI, that won’t be enough.

The process of finding out exactly what Flynn is offering will require a negotiation.

Flynn’s lawyers will start the bidding by showing just enough leg to pique the interest of the committees. They don’t want to show everything too soon because creating the hope and expectation that something better may lie underneath is a valuable negotiating chip. Holding something back would also give Flynn more flexibility with his testimony.

The committees will insist that they want it all, including Trump’s head on a platter. They will tell Flynn’s lawyers that he is not offering enough. Flynn will offer a bit more. It will go back and forth until either the committees are satisfied that they have squeezed everything they can out of Flynn, or Flynn decides that he is unable or unwilling to give more.

In the end, if the committees think they will get enough valuable testimony, they will talk it over with law enforcement and then vote to grant the immunity.

If they don’t think they are getting enough, the dance is over.

Everybody goes home alone.

Philip Rotner is an attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated. Follow Philip on Twitter at @PhilipRotner.

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