Washington is abuzz with the news that former national security adviser Michael Flynn has offered to cooperate with congressional investigators in exchange for immunity from prosecution. The offer was reportedly made by his lawyer to both the FBI and Congress. This has triggered a gleeful media frenzy as commentators hold forth on what damaging information Flynn might offer in exchange for immunity. However, the offer could also reflect a general preference of lawyers for immunity before allowing their clients to face potentially wide ranging interrogations or testimony. Update: President Trump has said that Flynn should demand immunity.
Flynn’s lawyer, Robert Kelner, offered a tantalizing hint to Congress and said “General Flynn certainly has a story to tell, and he very much wants to tell it, should the circumstances permit.” He added “Out of respect for the committees, we will not comment right now on the details of discussions between counsel for General Flynn and the House and Senate intelligence committees, other than to confirm that those discussions have taken place. But it is important to acknowledge the circumstances in which those discussions are occurring.’’
That is substantially short of a standard proffer of what a witness might offer. It is not clear if a proffer was supplied to the Justice Department. Flynn is the type of high ranking official that is the subject of immunity given to others as a target for prosecution. The problem with being high up in government is that there are few people higher for the purposes of targeting. People get immunity to incriminate the Flynns of the world. With the exception of the President himself, it is hard to see who Flynn could offer as a possible target in exchange for his own immunity.
Congress could grant Flynn testimonial immunity, though that would only protect him from the use of his testimony in a later prosecution. If he did not get immunity, he could plead the Fifth Amendment as did former IRS official Lois Lerner. Lermer refused to testify after Congress declined to give her immunity. The problem is that an immunity grant can undermine later prosecutions, even simple testimonial immunity. We saw those problems in the attempt to prosecute Oliver North. Immunity for Flynn could make any possible criminal charges less likely since he is alleged (without any clear proof) to have served as a key conduit to the Russians. Much like the immunity deals handed out by the Obama Administration, such a deal could cap the possible damage from any investigation.
I would be surprised for any attorney not to seek immunity in these circumstance. Flynn would be asked an assortment questions by both the FBI and Congress. Any misleading or false answer could result in charges under 18 USC 1001 or related laws. When you add the heavy political objectives behind various parties, this testimony is fraught with dangers. I would have asked for immunity in such a case for a client but the question now is whether Flynn offered a proffer that incriminated any other officials. Unless a proffer is supplied, the prosecution could by a “pig in a poke.”