Michael Flynn has publicly requested immunity. After serving as a high-level campaign advisor, Flynn was President Trump's first National Security Advisor for only three weeks before resigning amid legal and ethical questions around his communication with Russian officials—in particular with the Russian ambassador, Sergey Kislyak.
Now, he is at the center of investigations by FBI and both the House and Senate intelligence committees into Russian interference in the election. Flynn's communications are one important piece to answer the question: Did the Trump campaign coordinate with Russia to impact the election? If so, in what way?
"General Flynn certainly has a story to tell, and he very much wants to tell it, should circumstances permit," reads Flynn's lawyer's public statement.
Why is it important?
This investigation is the most high-stakes scandal of the Trump administration so far. If the allegations about Trump-Russia collusion are true, it is a national crisis of Watergate proportions—that the now-president coordinated with a hostile foreign power to win the election.
It is possible Flynn has information about the Trump campaign colluding with Russia. If so, granting him immunity could help the FBI and intelligence committees find out what happened and who was involved.
But it is also possible that this is a legal stunt to persuade members of Congress to grant Flynn immunity by offering testimony that won't help the investigation at all.
If you were requesting immunity, there are two kinds you could pursue: "transactional" immunity and "use" immunity. Transactional immunity is the TV-show type—the "we promise not to prosecute you as long as you agree to testify in court against a bigger target" kind. Transactional immunity is usually negotiated privately through the FBI, not announced publicly by your lawyers, as Flynn's have done. Use immunity, however, is granted by congressional committees with a two-thirds vote. It means that "nothing the person says when testifying before the committee can be used against them at trial." Use immunity is more public—by announcing the request like Flynn's lawyers did and drumming up public pressure, you could persuade members of Congress to grant it. The question is, should Flynn get either?
Should Michael Flynn be granted immunity from prosecution in order to testify on the Trump campaign's relationship with Russia?
The only argument for granting Flynn any kind of immunity is that he would then be able to give specific testimony that 1) we would otherwise not be able to compel him to give and 2) would directly implicate a bigger fish like Trump himself or a broader campaign conspiracy. Neither is likely to be true. We should not grant Flynn immunity.
We should not constrain our ability to prosecute Flynn for crimes he committed. We know he lied to Congress about discussing sanctions with Russian officials before President Trump took office. We know he did not disclose that he was paid $45,000 to sit next to Vladimir Putin at a Russian media gala, and two other significant payments from Russian-affiliated companies for unclear reasons. As President Trump put it at a campaign rally, "if you’re not guilty of a crime, what do you need immunity for?" The ties run deep, and Flynn should be compelled to explain them—without immunity.
Unless Flynn demonstrates that he has knowledge that could build a case against President Trump himself, there aren't many bigger fish his testimony would be useful to catch. Legal scholar Jonathan Turley writes, "People get immunity to incriminate the Flynns of the world." Even use immunity would be too much, because in practice it is very hard to prosecute an individual with use immunity after their testimony. We can and should force Flynn to testify without any kind of immunity. We deserve to hear the truth, and he deserves to be held accountable for it.
It is in the public interest to grant Michael Flynn immunity. Finding out the truth behind Trump-Russia allegations is the goal, not prosecuting Flynn. And it is perfectly reasonable to believe he has information relevant to that investigation.
At that point, prosecuting one campaign advisor is insignificant to the much more important goal. We need to answer the questions: Did the Trump campaign coordinate with a foreign power in order to sway a national election? Did any member of the Trump campaign violate federal law by undermining the Obama administration's sanctions against Russia before President Trump took office? Did President Trump know about any of the above or work to hide it at any point?
Given his longstanding ties to Russia and deep involvement in the Trump campaign, it does seem possible that Michael Flynn could have vital information for this case.
Specifically, he should receive the second kind of immunity, use immunity. First, simply because it's unlikely that the FBI will grant Flynn the first, transactional immunity. Second, because use immunity is granted by Congress and therefore most directly the result of public interest and opinion.
This is a matter that involves a national election. Voters can and should let their representatives know that they want to hear Flynn testify in full—and that means granting him use immunity.
- Flynn's lawyer's public statement
- "General Flynn certainly has a story to tell, and he very much wants to tell it, should circumstances permit... He is now the target of unsubstantiated public demands by Members of Congress and other political critics that he be criminally investigated. No reasonable person, who has the benefit of advice from counsel, would submit to questioning in such a highly politicized, witch hunt environment without assurances against unfair prosecution."
- Flynn on Meet the Press in September, referring to Secretary Clinton
- "I mean, five people around her have had, have been given immunity, including her former chief of staff. When you are given immunity, that means that you have probably committed a crime."
- Michael Flynn’s immunity request, explained by Vox's Zach Beauchamp
"In theory, [use immunity] is supposed to be more limited than transactional immunity: Federal prosecutors can still go after someone who has use immunity, provided they don’t rely on anything the person said during congressional testimony. In practice, however, granting someone use immunity usually ends up making it impossible for prosecutors to successfully get a conviction. "It is just really hard, later on, to prove to a judge that the prosecutor remained independent and untainted from the information that was bought [by Congress] through the immunity," Wright explains."