Some news outlets suggest Donald Trump’s deposed former national security advisor Michael Flynn is reported to be volunteering testimony in exchange for full immunity. The believers in the Ruskie conspiracy left will assuredly see this as a prescient indicator of future impeachment. It ain’t. As a long-time criminal defense lawyer, this is more likely a good sign for team Trump. Guilty people don’t publicly ask for immunity; innocent people wary of false charges do. (This is the difference between Flynn here and his comments about Hillary aides who received immunity; Hillary aides all did it privately, not publicly, a very big difference, as you will see below).
First, it is useful to know the law. There are two kinds of immunity: “transactional” immunity and “testimonial” immunity (the latter often called “use-and-fruits immunity”). Transactional immunity can prohibit any charges for anything criminal a person may have done. Testimonial immunity only prohibits the government from using anything you tell them against you in court. Neither covers future perjury. If the stories are correct, Flynn is likely requesting “transactional” immunity. Why? Ask Hillary aide Cheryl Mills. Mills reportedly obtained a broad immunity related to the emails, and yet neither she, nor anyone else, was prosecuted.
Second, it is good to map out the strategic choices involved in requesting immunity. If your client is actually guilty, or has or can obtain evidence of the guilt of others, then you always negotiate confidentially, not publicly. Why? Two paramount reasons: first, you are more useful to a prosecutor if they can use you as an undercover witness who can record future conversations; second, you are more useful to a prosecutor as a surprise witness whose role no one else knows while the investigation moves forward. Neither is possible with a public immunity proposal. You only go public when you believe you are innocent and fear false prosecution for political purposes. A note; none of Hillary aids ever publicly requested immunity; their deals were confidential and private, until released post-investigation to Congress.
Third, prosecutors hate transactional immunity, and even testimonial immunity, without a proffer first. Indeed, they really prefer a plea, which they can hold over your head as a means to get the testimony they want. Immunity strips a prosecutor of leverage; plea deals vest leverage in the prosecutor. That is why immunity deals are rare. Anyone who saw the finale of The Shield would understand.
Fourth, approvals for transactional immunity require specialized approvals up the food chain of the Department of Justice, and often prove difficult to obtain; equally, approvals for testimonial immunity can be given by Congress, but require comments from the Attorney General, and a vote of 2/3 of the committee or a majority of the entire house of Congress considering the issue. Both are rare — unless of course, you are a Hillary aide, and then five such people reportedly obtained immunity. (Remember the latter when you jump to a conclusion about what immunity requests mean in politicized investigations: no one was prosecuted after the immunity granted in the HRC email case).
What you don’t do as a target, witness, or defense attorney, is publicly tell the world you are only going to talk if given immunity first; you only do that when you believe you don’t have guilty information, but do feel you are being set up for possible false charges.
What does this mean for Trump about the reported Flynn publicly seeking immunity? Good news. How? By publicizing the offer of transactional immunity for testimony, the witness is actually telling the world they are never going to be talking at all, and have no deal. They also removed themselves as a potential undercover or surprise witness. They are also saying the only way they ever would testify is if they had the kind of deal that allows them to testify truthfully, not dishonestly, so that the criminal guillotine can never be used against them. Last but not least, publicly airing this makes it clear any testimony from here on out was a quid-pro-quo for an immunity deal, rendering any such future harmful testimony of doubtful credibility. If you want to watch how these cases can work in the real world, watch Showtime’s Billions.
Even if the offer is taken up, this is almost assuredly a ploy by a smart defense counsel or Flynn himself — get full immunity for anything and everything, and then, when your only risk is perjury, you can tell the truth, that Trump did nothing wrong, and the government can no longer hold the criminal guillotine over your head. This is precisely what Cheryl Mills appeared to do in the Hillary case, and Flynn closely observed how that case was handled.
This also puts pressure on Comey and crew: do they deviate from what they gave Mills? Do they treat Hillary’s people differently than Trump’s? Didn’t Comey just promise no favoritism? There is no easy way out of this for Comey and crew now that Flynn appears to have gone public with his offer: either give Flynn what you gave Mills (and watch Flynn help Trump in the process as Mills aided Hillary) or let Flynn out from under the criminal guillotine. Flynn, with his extensive experience in the defense services, fully understands the war being waged against him, and the reasons therefore: purely political. But Flynn is no amateur at this game, and the Clinton email case set a precedent the deep state can now not avoid.
Flynn just gutted his own utility as a coerced witness, and gutted the government’s ability to coerce false testimony by holding a criminal guillotine over his head. His real message: he is innocent, the investigation is bogus, and he wants the world to know. In short, if the stories are true, Flynn just told the world, and the deep state, they just got Trumped.
Robert Barnes is a California-based trial attorney whose practice focuses on Constitutional, criminal and civil rights law. You can follow him at @Barnes_Law
This is an opinion piece. The views expressed in this article are those of just the author.
