Why does someone request immunity from prosecution before speaking with federal investigators? That question will likely consume Washington in the weeks ahead after Thursday night’s bombshell Wall Street Journal report about former National Security Advisor Michael Flynn.
According to the Journal, Flynn is seeking an immunity deal from the FBI and the congressional intelligence committees in exchange for an interview on the Russia investigation, a potentially ominous move for a Trump administration struggling to move past the allegations surrounding it. What Flynn would discuss with investigators if granted immunity is unknown. According to the Journal, neither FBI investigators nor the congressional committees have accepted his offer so far. The New York Times cited an unnamed congressional official as saying investigators are not willing to broker a deal “until they are further along in their inquiries and they better understand what information Mr. Flynn might offer as part of a deal.”
A cryptic statement by Robert Kelner, Flynn’s attorney, also provided more questions than answers. “General Flynn certainly has a story to tell, and he very much wants to tell it, should the circumstances permit,” Kelner said. “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.”
A request for immunity isn’t an admission of guilt or wrongdoing. It may be sought by witnesses who fear that their words could be used against them, as a condition of their testimony. The Journal previously reported FBI agents had questioned Flynn in January shortly after the Trump administration denied he had spoken with Russian Ambassador Sergey Kislyak the previous month. While the precise nature of that interview is unknown, it is a federal crime to lie to the FBI during a criminal investigation.
But the move could also be a purely prophylactic measure. “Not withstanding his life of national service, the media are awash with unfounded accusations, outrageous claims of treason, and vicious innuendo directed against him,” Kelner said. “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’s prominent roles in the Trump campaign, the presidential transition, and the first month of the administration placed him at the center of the president’s inner circle during its most pivotal months. That preeminence came to an abrupt end last month when he was fired by President Trump last month for lying about his conversations with the Russian ambassador during the transition. The former Army general had previously been dismissed by the Obama administration after a rocky tenure as head of the Defense Intelligence Agency in 2014. In both positions, Flynn’s combative management style reportedly alienated top White House officials in the Obama and Trump White Houses.
The controversy that eventually led to Flynn’s ouster began in December, when the Obama administration imposed sanctions against the Russian government. The U.S. intelligence community accused Moscow of using cyberthefts targeting the Democratic National Committee and top Clinton campaign officials to influence the 2016 presidential election and undermine Democratic candidate Hillary Clinton’s bid for the White House.
The same day the sanctions were announced, Flynn spoke with Kislyak multiple times by phone. He and top Trump administration officials subsequently denied reports that the two men had spoken, only to subsequently oust him as national security advisor after multiple news outlets reported that U.S. intelligence agencies had picked up conversations between them during their routine surveillance of foreign diplomats. It’s not unusual for those suspected of lying to federal authorities to seek immunity before testifying further.
Russia isn’t the only country haunting Flynn. Earlier this month, he filed paperwork with the Justice Department to retroactively register under the Foreign Agent Registration Act as a lobbyist for the Turkish government. Such filings aren’t unusual in Washington, where foreign countries often hire lobbyist firms to represent their interests or burnish their image. But Turkey’s contract with Flynn’s firm was signed in August, three months before Trump selected him to be the national security adviser. The White House later admitted after Flynn’s filing that it had known he could be required to register as a foreign agent before the inauguration.
Trump’s former electoral opponent Hillary Clinton also saw members of her inner circle receive immunity deals last year. The FBI reportedly granted Cheryl Mills, a top Clinton aide, and a handful of other associates limited immunity deals during the agency’s investigation into Clinton’s use of a private email server during her tenure as secretary of state. In that case, the deals did not result in other prosecutions: FBI Director James Comey ultimately declined to recommend charges against Clinton or anyone else involved in the investigation in July.
But immunity deals can carry their own whiff of misconduct, which can be seized upon by opportunistic political opponents, as Flynn himself told NBC’s Meet the Press last September when discussing the Clinton campaign’s legal woes. “When you are given immunity, that means you have probably committed a crime,” he insisted.
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