Mr. Flynn’s lawyer, Robert Kelner, recently issuing a tantalizing public statement as part of an aggressive lobbying campaign to obtain immunity for the former national security advisor: “General Flynn certainly has a story to tell, and he very much wants to tell it, should circumstances permit.”
While Flynn may have a story to tell, his sworn testimony would come at far too high a price if either Congress or the Justice Department were to grant him immunity in return for it. There are numerous reasons for this, and the indications that neither the House or Senate Intelligence Committees are jumping at the opportunity to immunize Flynn and thereby secure his testimony is an extremely positive development. Here’s why.
1. Flynn Is Too High Up In the “Food Chain.”
As a former senior Trump Campaign official and as the National Security Advisor to President Trump (albeit for only 28-days), General Flynn is a very high government official, and an immunity grant to him at this early stage of the investigation would violate one of the cardinal rules of any federal investigation. Absent extraordinary circumstances, immunity should only be granted to a subject or target of an investigation if he or she has credible evidence of criminal conduct by someone higher-up in the in the criminal conspiracy or racketeering organization. Immunity, therefore, is usually only offered to low-level players in order to “flip” them and obtain their sworn testimony against more prominent figures higher up in the criminal organization.
With the possible exception of President Trump and Vice President Pence, Mr. Flynn was at the top of the pyramid, at least during his short tenure in the White House. And there is no indication that VP Pence played any role in the Team Trump/Russian cabal. This leaves President Trump as someone who Flynn could implicate in his “story,” but there is absolutely no reason to give Flynn an “immunity bath” just because we are all curious to hear what he might say about the President. In all likelihood, everything will be disclosed in due time, with or without Flynn’s testimony.
2. Flynn Probably Doesn’t Know Much More Than What Has Been Publicly Disclosed.
Unlike Paul Manafort, whose ties to Russian and pro-Russian oligarchs goes back for more than a decade, General Flynn came fairly late to the “let’s play footsie with the Russians” game as a member of Team Trump.
The major tip-off that Flynn does not really have much more information that would be of interest to Congress or the Justice Department is that his lawyer took the unusual step to publicly announce that Flynn was seeking immunity. Usually, if a defense counsel has some real “smoking gun” information to offer up to government prosecutors in return for a grant of immunity to a client, they set up a closed-door, confidential meeting with the prosecutor, sit down, and go over the “proffered” testimony of the witness in great detail. Either Flynn’s lawyers had already gone down this path and had hit a dead end before issuing their press release, or Flynn did not really have much high value information to share in the first page, so the only available option was to create a media-hype that would stampede one or both of the Congressional committees into giving Flynn immunity in return for the promised “story.”
Flynn’s first major involvement with the far-flung Kremlin propaganda machine came in December 2015 where, less than a year after resigning from the U.S. military, Flynn showed up in Moscow at the 10th Anniversary Gala of Russia Today (RT), an arm of the Russian security apparatus. Flynn sat next to Vladimir Putin at this festive event and, overwhelmed with enthusiasm at being so honored as to be assigned o Putin’s table, jumped up to lead the well-heeled crowd in a rousing standing ovation for this Great Russian Autocrat.
Flynn was paid generously for his services, receiving over $67,000 from RT and three other Russian companies with close ties to the Kremlin. As if this was not enough of a red flag, Flynn apparently did not get clearance for his Moscow trip or these payments from the Pentagon, thus exposing himself to all sorts of possible disciplinary and criminal sanctions.
Then there was the now-famous December 2016 phone calls with the Russian Ambassador, which Flynn discussed the possibility of a Trump Administration lifting or at least easing sanctions against Russia. Flynn then lied to VP Pence about these phone conversations, resulting in the embarrassing situation where Pence was duped into making misleading statements to the press regarding Flynn’s contacts with the Russians. Even though he had been the DIA Director, Flynn either didn’t know or forgot that U.S. intelligence agencies monitor the phone conversations of high-level Russian officials in this country, and that it was likely that his conversations with the Russian Ambassador would be recorded. The transcript of Flynn’s fateful phone calls ended up on the desk of Acting Attorney General Sally Yates, who warned the White House that Flynn could be compromised by the Russians since he was spreading false and misleading stories about his contacts with the Russians. Shortly after the story broke, Flynn was forced to resign.
In all likelihood, before the truth came out, Flynn also lied about his conversations with the Russian Ambassador to the FBI, which is itself a federal crime under Title 18 of the United States Code, Section 1001, even though he was not place under oath at the time. If so, this would be a “slam dunk” of a prosecution since all a federal prosecutor would only have to introduce two pieces of evidence in order to get a criminal conviction: (a) the transcript of the phone conversation between the Russian Ambassador and Flynn, and (b) the transcript or notes of the FBI’s interview with Flynn. Case closed. Flynn would then be sentenced to up to five years in prison, although the sentence would probably be on the lighter side if he decided to then tell his full “story” without immunity.
Flynn also has criminal exposure for his retroactive registration as a foreign agent for the Turkish government, while, at the same time, serving as a top advisor to the Trump Presidential campaign. The $64,000 question is why Flynn waited until after he had been terminated as the national security advisor before properly registering and informing Trump and other senior officials: “Oh, and by the way, I am working as an agent for a major foreign power; that’s OK, right?” Flynn also failed to timely disclose that his former consulting firm earned $530,000 in 2016 from a Dutch entity with ties to the Turkish government. What’s his explanation: “I was very busy at the time and just plain forgot.” Not very convincing.
3. History Teaches Us that It is Virtually Impossible to Prosecute Someone After Even a Limited Grant of Immunity
Even if Flynn were to be given limited “use” immunity, as opposed to “transactional immunity,” he could theoretically still be prosecuted under the federal criminal law based upon evidence that is totally independent of the evidence he may provide under oath through his own testimony. However, in practical terms, it would be virtually impossible to prosecute Flynn for any serious criminal offenses he may have already committed once he was granted “use” immunity by either Congress or the Justice Department. History has already proved this point.
On July 20, 1980, the United States Court of Appeals for the District of Columbia vacated all three of Oliver I. North’s Iran-contra felony convictions and overturned his conviction for having destroyed classified documents while he served as an aid to the National Security Council under President Ronald Reagan. The major factor leading to this reversal was concern that North’s conviction had been tainted by testimony he had given to Congress on the promise that it would not be used against him.
In the summer of 1987, North, a former Marine Corps Lieutenant colonel who was alleged to have played a key role in getting arms from Iran to be delivered to the right-wing “contras” in Nicaragua, and his boss, John M. Poindexter, the national security advisor, had been given “use” immunity by Congress in return for his sworn testimony. This use immunity agreement had been made by Congress over the objections of independent special prosecutor, Lawrence M. Walsh, and without consultation with the Justice Department.
Similar to the current calls for an immunity agreement with Flynn — based upon the argument that the country and the public urgently needs to immediately know the whole truth about any possible collusion between the Trump Team and the Russians — there was a strong impetus by Democrats during the Reagan Administration to push the Congressional inquiry into President Reagan’s Iran-contra policies as vigorously as possible. Congressional Democrats wanted to get the public testimony of such high-profile witnesses as Oliver North, the assistant to then-National Security Advisor John Poindexter. North usually showed up for public appearances decked out in his spiffy Marine Corp uniform, and never disappointed in given dramatic testimony. The temptation was too much for publicity hungry members of Congress, and the testimony of North and Poindexter was unquestionably the high point of the hearings. Indeed, it was great theater, and many Americans, including myself, remember watching North testify before Congress.
However, the cost for such a spectacle was very high. By immunizing North and Poindexter, the Justice Department’s investigation and later prosecution of them was crippled from the start. The Justice Department invested a tremendous amount of time and money in prosecuting North and Poindexter, only to have those convictions overturned because of the prior immunity grants that they had been given by Congress. The government’s burden of establishing that the evidence used to convict North and Poindexter was completely unrelated to their Congressional testimony was an impossibly high one, and the government was unable to meet it, as the federal appeals court later determined in July 1990.
4. Immunity for Flynn Would Send the Wrong Message
Flynn’s legal predicament is entirely of his own making. Remember his chants of “Lock her up, lock her up” at the Republican National Convention in Cleveland last summer? Remember his clenched jaw and sense of total outrage over the fact that a former Secretary of State had stored confidential data on a less-than-completely-secure server and was still walking around free, and even having the temerity to run for the Presidency? Remember his rants about the five Clinton aides who had been given immunity as part of the FBI investigation, speculating that they must have been involved in criminal conduct if they or their lawyers felt that they needed immunity?
Turnabout is not only fair play, but it provides an important “teaching moment” for the all of us. One of the fundamental ethical principles of our great society is that each person must take responsibility for their own words and their own actions. President Harry S. Truman had his now-famous saying on his desk in the Oval Office: “The buck stops here.” The Trump Administration seems to have gotten a new motto: “If you can pass the buck, do so, and there will be no adverse consequences.”
Flynn is on record as believing that if someone asks for immunity, they must be guilty of something. He has now asked for immunity, so he must believe that he is guilty of something. Whatever that “something” is, a full and fair investigation should be completed by the relevant Congressional committees and the FBI/Justice Department. What Flynn has to say about it right now is largely irrelevant, since has already ventilated his views in numerous lengthy interviews with reporters. Hearing his story once again under oath in a public forum would be interesting, but probably not very enlightening. If he wants to “give up” the President, there will be plenty of time for him to share his story with us after the criminal investigation and possible prosecution has run its course.
The only rational decision for Congress and the Justice Department to make – at least in the short term – is to just say “No.”