It seems like the only people who got excited over Mike Flynn’s offer to testify in exchange for immunity were people who imagined he was going to “flip” on Trump. I have yet to read commentary by a single lawyer who took the offer seriously. The most complete analysis I’ve seen comes from the blog Just Security in a post by former federal prosecutor and current Harvard Law professor Alex Whiting titled Flynn’s Public Offer to Testify for Immunity Suggests He May Have Nothing to Say.
As an experienced lawyer, Kelner will know that the Justice Department would never grant immunity for testimony on these terms. Prosecutors would first require that Flynn submit to what’s called a proffer session in which Flynn would agree to tell everything he knows in exchange for the prosecutors agreeing not to use his statement against him. Only after the prosecutors heard what Flynn could offer in terms of evidence against others, and had an opportunity to assess his credibility, would they be willing to discuss any grants of immunity or a cooperation deal. At a minimum, the prosecutors would require Flynn’s lawyer to make a proffer outlining the information that Flynn could provide.
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.
All of this is true. Where I think Whiting goes off the rails is by asserting that he thinks Flynn is trying to bait one or the other investigating committees into granting him immunity. He offers the analog of Oliver North who negotiated such a deal and then, while immunized, testified to anything he thought might be illegal and so muddied the waters than the prosecution of him failed, as it should have. I don’t believe that’s the case and I find it hard to believe that an actual lawyer, like the one Flynn is employing, would think anyone would entertain an immunity agreement when there are not even actual crimes under investigation. This message is aimed at the public and at Trump’s base. It is quintessential “stray voltage” as pioneered by the Obama White House:
This is the White House theory of “Stray Voltage.” It is the brainchild of former White House Senior Adviser David Plouffe, whose methods loom large long after his departure. The theory goes like this: Controversy sparks attention, attention provokes conversation, and conversation embeds previously unknown or marginalized ideas in the public consciousness.
Flynn’s offer coincided with this:
Mike Flynn should ask for immunity in that this is a witch hunt (excuse for big election loss), by media & Dems, of historic proportion!
— Donald J. Trump (@realDonaldTrump) March 31, 2017
The sole purpose of Flynn’s offer was to get people talking about Flynn’s offer. His lawyer knew it wasn’t serious. It doesn’t seem like either of the committees thought it was serious. But it does serve as a shiny object to distract.