Flynn’s Offer to Testify in Exchange for Immunity May Not Be As Explosive As It Sounds

Don’t lock me up. Photo: The Washington Post/The Washington Post/Getty Images

On Thursday night, The Wall Street Journal reported that former national security adviser Michael Flynn is seeking an immunity deal from the FBI and the Senate and House intelligence committees in exchange for his testimony on the Trump campaign’s alleged ties to Russia.

This sparked predicable reactions from both sides of the political spectrum. Many on the left took the “bombshell” report as an indication that Flynn intends to incriminate top White House officials. Even some Democratic lawmakers suggested the Trump administration’s days were numbered:

Meanwhile, right-wing social media immediately branded the story “fake news.” Weirdly, Flynn’s son retweeted several claims that the story was untrue, even as his father’s lawyer released a statement that seems to confirm the Journal’s report. Attorney Robert Kelner didn’t use the word immunity, but he said Flynn has had discussions with the intelligence committees, and noted no one would “submit to questioning in such a highly politicized, witch hunt environment without assurances against unfair prosecution.”

If Kelner was trying to shut down the wild speculation about his client, he wouldn’t have teased, “General Flynn certainly has a story to tell, and he very much wants to tell it, should the circumstances permit.” But the move might actually suggest that Flynn’s story is less explosive than Trump’s opponents hope.

It’s not unusual for potential congressional witnesses to seek immunity, but the blog Just Security notes this isn’t the way to do it. Usually, a witness would privately outline the evidence they could offer, then Justice Department prosecutors would discuss a deal. Alex Whiting writes:

The fact that Flynn and his lawyer have made his offer publicly suggests that he has nothing good to give the prosecutors (either because he cannot incriminate others or is unwilling to do so). If he had something good, Flynn and his lawyer would approach the prosecutors quietly, go through the proffer process in confidence, and reach a deal. Why? Because prosecutors have an interest in keeping their investigation secret, and Flynn’s lawyer knows that. The last thing Flynn’s lawyer would do if he thought he had the goods would be to go public, because that would potentially compromise the criminal inquiry and would certainly irritate the prosecutors, the very people Flynn’s lawyer would be trying to win over.

Whiting speculates that Flynn’s attorney might have been “hoping that one of the Congressional committees will take the bait and grant him immunity in exchange for his testimony.” As the New York Times explains, Congress can grant witnesses immunity, but it would be unusual for lawmakers to make a move that could compromise the Justice Department’s investigation:

Under federal law, Congress can grant witnesses immunity for their testimony, but lawmakers normally do so only after consulting with prosecutors.

Congress normally avoids doing anything that could disrupt a federal investigation. Federal law allows the Justice Department to delay a congressional immunity deal but not block it outright.

Officials told the Journal that at this point FBI and congressional investigators have no interest in pursuing an immunity deal with Flynn. But in light of the mess surrounding House Intelligence Committee Chair Devin Nunes’s attempt to validate President Trump’s wiretapping claims, it isn’t ridiculous to think that a member of Congress might be willing to break protocol in an effort to secure Flynn’s testimony.

Flynn has reason to pursue an immunity deal even if the press already revealed everything there is to know about his contact with foreign agents. The most serious allegations against Flynn so far are that he made false statements to the FBI about his discussions with Russia’s ambassador to the U.S. and failed to register his lobbying on behalf of Turkey with the Justice Department. According to media reports, the FBI is not expected to pursue charges against Flynn for his misleading statements, and the Justice Department usually works with lobbyists to file the correct paperwork rather than charging them.

But a Flynn associate tells Politico that the retired general has not received official assurances that he’s in the clear. “I know of no official at the FBI telling him, ‘Hey, we’re not prosecuting you.’ Only in the press,” the associate said.

On the other hand, maybe Flynn’s attempt to secure an immunity deal is a sign that he’s guilty of far more serious crimes. As a former high-ranking government official once said, “When you are given immunity, that means that you have probably committed a crime.”

Flynn’s Immunity Offer May Not Be As Explosive As It Sounds