Via Sissy Willis Tweet: 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.
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.
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5 comments:
At this point, all we know for certain is Flynn is victim of a felonious unmasking by someone under Obama.
He may have done something criminal, but we know he's a victim.
Anything you do, including nothing, can be against Federal law.
PS Trump supports him in this.
Asking for immunity is just smart. You don't want to fall into a perjury trap that they are setting him up for because they hate him and Trump. Now he can tell the truth and let the chips fall where they may. He doesn't have to try and shade anything to protect anyone.
It is a smart move.
Since this involves Russia, and because Sessions has recused himself from such matters -- who is spearheading the DoJ investigation?
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