Granting Immunity From Prosecution

Former National Security Advisor Michael Flynn has requested immunity from prosecution in exchange for testimony before Congress concerning various claims of the Trump Administration’s purported ties to Russian business and governmental interests. General Flynn himself seems among the worst of the offenders. ((Well, “offenders” would be the right word only if there is any fire beneath the smoke awaft, but let’s let that bit of semantic go for the time being, bearing in mind that there are rumors and informal accusations, and a pending investigation only, not even so much as a prosecution yet much less a conviction. Flynn and others potentially involved enjoy the presumption of legal innocence until proven guilty.)) And there is an ongoing investigation about collusion between the President, his people, and the Russian government which includes both the election and the incumbent Presidential Administration.

Unsurprisingly, General Flynn’s request for immunity from prosecution based on theoretical Congressional testimony was rejected as a preliminary matter. But he has also made that request to the Department of Justice, and it’s likely that when matters reach a point of subpoenaing Flynn to testify before Congress, Congress will have to revisit this issue. The odds of a grant ever being made aren’t all that good for Flynn, but the legal reasons why the odds aren’t good are pretty significant. Here, then, are the criteria for immunity from prosecution.

Generally, immunity is governed by 18 USC § 6002:

Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—(1) a court or grand jury of the United States, (2) an agency of the United States, or (3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House, and the person presiding over the proceeding communicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

So the first thing that has to happen is the witness must invoke a Fifth Amendment right against self-incrimination, and then, the judge or chair of the Congressional committee may issue an order granting immunity.

Also, note that immunity never covers perjury.

In the case of testimony to Congress, the chair of the committee does not have unilateral discretion to grant the immunity anyway. 18 USC § 6005 provides:

(b) Before issuing an order under subsection (a) of this section, a United States district court shall find that—
(1) in the case of a proceeding before or ancillary to either House of Congress, the request for such an order has been approved by an affirmative vote of a majority of the Members present of that House;
(2) in the case of a proceeding before or ancillary to a committee or a subcommittee of either House of Congress or a joint committee of both Houses, the request for such an order has been approved by an affirmative vote of two-thirds of the members of the full committee; and
(3) ten days or more prior to the day on which the request for such an order was made, the Attorney General was served with notice of an intention to request the order.

Translated: first the Congressional committee that would take the testimony has to give the Attorney General notice of an intent to hold a vote on immunity ten days before the vote takes place; then the committee must approve the grant of immunity by two-thirds majority, and then the House, or Senate, must approve the grant of immunity by majority. And then all of this needs to be confirmed in a court order upon a motion made by the Department of Justice.

Which leads us to section 9-23.000 of the United States Attorney’s Manual, the document setting forth operating policies for all Federal Prosecutors. As a practical matter, with respect to General Flynn, the matter would be referred to the Deputy Assistant Attorney General for review and approval or denial. Requests for immunity are, by policy, viewed skeptically:

9-23.212 – Decision to Request Immunity—Conviction Prior to Compulsion
It is preferable as a matter of policy to punish offenders for their criminal conduct prior to compelling them to testify. While this is not feasible in all cases, a successful prosecution of the witness, or obtaining a plea of guilty to at least some of the charges against the witness, will avoid or mitigate arguments of co-defendants made to the court or jury that the witness “cut a deal” with the government to avoid the witness’s own conviction and punishment.

9-23.214 – Granting Immunity to Compel Testimony on Behalf of a Defendant
As a matter of policy, 18 U.S.C. § 6002 will not be used to compel the production of testimony or other information on behalf of a defendant except in extraordinary circumstances where the defendant plainly would be deprived of a fair trial without such testimony or other information. This policy is not intended to preclude compelling a defense witness to testify if the prosecutor believes that to do so is necessary to a successful prosecution.

Defendants themselves only rarely get immunity, and then only with respect to matters ancillary to the prosecution. Prosecutors must be mindful of the “he cut a deal” claim by the other defendants thrown under the bus by the testimony from the now-immunized witness. If those aren’t issues, the prosecutor then must consider “the public interest” and include within their contemplation of the public interest at least six criteria under section 9-23.210:

A. The importance of the investigation or prosecution to effective enforcement of the criminal laws;
B. The value of the person’s testimony or information to the investigation or prosecution;
C. The likelihood of prompt and full compliance with a compulsion order, and the effectiveness of available sanctions if there is no such compliance;
D. The person’s relative culpability in connection with the offense or offenses being investigated or prosecuted, and his or her criminal history;
E. The possibility of successfully prosecuting the person prior to compelling his or her testimony;
F. The likelihood of adverse collateral consequences to the person if he or she testifies under a compulsion order. ((It is criterion 9-23.210(F) which has a few of my more cynical friends discussing General Flynn’s plans to “commit suicide by Putin.”))

Finally, there is the issue of what kind of immunity is to be granted if it is granted at all. Here, federal prosecutors are guided to another text, the Criminal Resource Manual, sections 716-719. The immunity usually requested by a would-be witness is “transactional immunity,” which means that an act of the witness described in the witness’ testimony may not later be prosecuted, where “use immunity” only protects the witness from having that testimony used against him later. In other words, the witness can still be prosecuted for the crimes he admits to have committed, if there is sufficient other evidence acquired before the grant of immunity ((Or, under the “fruit of the poisonous tree” doctrine, which would demonstrably have been available notwithstanding the testimony. This is roughly the holding of Kastigar v. United States, 406 U.S. 441 (1972), set out in Criminal Resource Manual 718.)) to convict him. Finally, there is something called “informal immunity,” which is not a statutory grant of immunity but rather a contractual agreement to not prosecute in exchange for the witness voluntarily giving testimony. Informal immunity, unlike the other kinds, is not binding upon a state-level prosecutor in the event that a witness admits violation of a state law while testifying pursuant to an informal immunity agreement with the Department of Justice.

Now, take a look at that those last two sentences again. A prosecutor can informally agree, on behalf of the Justice Department, to not prosecute a witness for a given set of crimes. That would very much be the way I’d like to go if I were a prosecutor inclined to seek immunity for a particular witness. After all, I’m guided as a prosecutor to seek punishment where it can happen. What I would much prefer to do rather than grant immunity at all would be to have the would-be witness strike a plea bargain with me for a lesser-included charge, and stipulate that the greater charge pending against the witness would be encompassed by the Double Jeopardy Rule. After all, the grant of immunity wouldn’t be necessary if the witness had not done something that raised a reasonable possibility that the witness himself had committed a crime.

For this reason, part of what a witness requesting immunity needs to do is make a proffer. Somehow, the witness would need to tell me what it was that he was going to say and why I might need or want it as part of my prosecution. It’s the witness’ problem to figure out how to describe the anticipated testimony without actually giving me the information itself. Something along the lines of “My testimony will identify people more significant than me who are guilty of other, greater crimes, and my personal knowledge of having seen them commit those crimes.”

That leads us to other incentives to prosecutors. Now, I am not a prosecutor and never have been one. I know of one law blogger who would be ideal to comment on this issue. But in his absence, and at this level of analysis, it isn’t that hard to figure out how a prosecutor would think, whilst obliged to operate within this scheme of rules.

Obviously, the prosecutor would like to reel in the biggest fish possible in a prosecution: for instance, if it’s a drug dealing case, getting information about the head of the cartel is better than getting information about a mid-level distributor and a handful of enforcers. You’d grant an enforcer immunity if the enforcer were going to throw the big guy under the bus. But you wouldn’t be inclined to grant immunity to the #2 guy in the operation, unless that was absolutely the only way you could get the #1 guy.

Generally, though, you’d want to take as many of the top guys in a criminal enterprise down as you can.

Which is why a request for immunity by General Flynn seems so very strange to me. If I were a prosecutor, I’d certainly be disinclined to grant of immunity to General Flynn. By any rational standard, Flynn is one of the top guys. Flynn would be my target. He’s got to offer me a better target than himself — and he’s got to offer me something that I can have a good sense will let me actually hit that target. In a case concerning a foreign government exercising surreptitious influence over governmental officials close to the President through illegal means, what could possibly meet that standard?

Only a claim against the President himself, so far as I can tell. And that makes the President’s tweet about the issue that much more confusing:

Now, this is hardly the first case of Trump making a tweet that seems unwise to the rest of the world, but this is an enormous risk to the President. There is about zero reason that I can see for a prosecutor to (in good faith) seek any kind of immunity whatsoever for Flynn other than a case against the President himself that already had some meat on the bones. Now, this post isn’t intended to flesh out the evidence for such a case, though you’re free to discuss that in the comments if you wish. It’s to point out that this request for immunity doesn’t seem remotely well-calculated to accomplish anything of legal significance and Flynn doesn’t seem likely to get any kind of immunity at all.

If he does, I’d predict that it would be the “informal immunity” of a plea deal to, say, perjury on Flynn’s financial disclosure documents, in exchange for testimony directly incriminating President Trump of a serious crime.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.