Immunity for Flynn: Don’t Do It

Benjamin M. Adams   —    March 31, 2017   —   @BenAdamsO_O

Over the past couple of months, I’ve tweeted a bit about immunity, mostly because it’s made up of the hot, thick smoke that means fire is close. Beyond its significance as a signal of culpability, discussions about immunity normally indicate progress in an ongoing prosecution. The mini-thesis of this post is that Flynn has been caught and should not be given immunity. He should be tried and sent to jail if found guilty. The one instance in which Flynn should be immunized is if he is able to directly implicate President Trump.

Several additional thoughts on immunity:

• Flynn is busted. Registering “retroactively” as a foreign agent is like getting a law license retroactively when you’ve been caught practicing without one. It doesn’t work that way. He also may have lied on his background forms. Those are relatively small things, but Flynn took money from Russia and Turkey so more serious charges are possible. Either way, Flynn is guilty of crimes that could send him to prison. That’s where we stand now.
• Flynn is probably desperate for immunity. He has been caught violating federal law. If he can finagle immunity for testifying, Flynn will have gotten away with those crimes. Sensing the opportunity, Flynn’s lawyers have gone public, attempting to whet our appetites with promises of a “story to tell.” The trouble with that is public opinion doesn’t get you immunity. What gets you immunity is specific information that investigators and prosecutors want from you.
• Prosecutors cut immunity deals when a drug dealer testifies against their supplier or when an employee testifies against their boss or when one politician implicates a senior, more powerful one. Investigators always move up the chain, not down, and they are doing that now. One can argue that only POTUS, and perhaps Pence, are up the chain from Flynn. Since Flynn has yet to secure a proffer of immunity, it suggests one of several possibilities. First, Flynn may not have inculpatory information on Pence or Trump. Second, he may have the goods, but is still attempting to get immunity while still protecting them. A third possibility is that Flynn has the goods and will get his immunity at the end of the day, but that he is being allowed to blow in the breeze for right now.

No matter what happens, we ought to caution against turning Flynn into the 2017 version of Ollie North simply because we are eager for information. Last night on The Rachel Maddow Show, Wall Street Journal reporter Shane Harris (who broke the immunity story) argued that Flynn, “clearly . . . has a story to tell . . . and it makes perfect sense . . . that he would seek those [protections] before he gives that testimony to investigators.” One hopes Shane Harris was merely paraphrasing the arguments of Flynn’s attorneys. Either way, the assertion is utter nonsense. What makes “perfect sense” is that Flynn is a rat trying to save his own skin. Sure, I’d like Flynn to turn states evidence and implicate everyone except Trump in one fell swoop, but that temptation should be resisted. If Flynn has the goods on Trump, we can let him walk just for the sake of ending our national nightmare. If not, then prosecutors should try to “lock him up” like he deserves.