It May Be Too Soon For Congress To Grant Flynn Immunity In Inquiry Over Russia Ties

Apr 1, 2017
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MICHEL MARTIN, HOST:

We're going to start the program today with news about President Trump's former national security adviser, Michael Flynn. In a letter from his lawyer, Mr. Flynn said he is willing to offer information to the House and Senate intelligence committees as part of their investigation into the president's possible campaign ties with Russia. What Mr. Flynn wants in return - immunity from prosecution. President Trump responded with a tweet Friday, saying Mike Flynn should ask for immunity. He called the investigation a witch hunt.

We wanted to make sure we understand what this is all about, so we called Stephen Saltzburg. He's professor of law at George Washington University. He's also served as a deputy attorney general and as an associate independent counsel, so he knows this territory well. Professor Saltzburg, thanks so much for speaking with us.

STEPHEN SALTZBURG: Glad to be on the air.

MARTIN: So could we just take a step back here because this story has been in and out of the news. It's easy to lose track of the details. What is the essence of what is being investigated here?

SALTZBURG: Well, the essence of what being investigated with respect to General Flynn is the contacts he may have had with Russia and Russian agents during the election. But there are also some offshoots on that. I suspect that there will be an investigation into whether he was truthful and honest when he was asked questions by government officials. And there is an other issue that's worked, which is whether he should have registered earlier as a representative of foreign government.

MARTIN: Why would General Flynn want immunity?

SALTZBURG: In order to answer that, it's important that people understand what immunity is. Everybody in America who is asked questions in a grand jury, by Congress, in any proceeding, has a right to invoke the privilege against self-incrimination if they believe there's any possibility at all, no matter how remote, that answering a question could produce evidence that could be used in a subsequent criminal prosecution. The way we compel people to answer is we give them immunity and promise them that nothing they say will ever be used against them. And what General Flynn wants and what his lawyers won is very smart. They would like him to be given immunity now because if that happens, it would virtually make it impossible to prosecute him for anything, no matter what is discovered, as the investigation continues because it's very hard to show once you've given somebody immunity that the evidence you gather supposedly independently is really independent.

MARTIN: Well, you've raised a couple of issues that I wanted to dig into a bit here. First of all, you know, inevitably this has brought up the issue of General Flynn himself talking about the issue of immunity. On "Meet The Press" in 2016 - we'll play this short clip - the issue here was the FBI's probe into former presidential candidate Hillary Clinton's private email server, which she used when she was secretary of state. And this is what he said.

(SOUNDBITE OF TV SHOW, "MEET THE PRESS")

MICHAEL FLYNN: Five people around her have had - have been given immunity, to include her former chief of staff. When you are given immunity, that means that you probably committed a crime.

MARTIN: So that was General Flynn himself in 2016. Is that true?

SALTZBURG: (Laughter) In my experience, everybody takes the view that General Flynn took until they're under investigation and then, if they have a decent lawyer, they're going to claim the privilege against self-incrimination just as the people around Secretary Clinton did and just as General Flynn is going to do now.

MARTIN: And you also raise this whole question of the fact that there are multiple bodies investigating this. So in that circumstance, who has the authority to grant immunity? And does that affect other investigations or other bodies that are also doing investigations?

SALTZBURG: Yes. The Department of Justice has the authority to go into court and to ask for an order giving a witness or a potential witness immunity. And the court has to issue that order. Congress also has the authority to ask a court to confer immunity upon a witness. And Congress is supposed to consult with the Department of Justice, but there's nothing to stop either the department or Congress from acting on its own. I think one of the lessons that came out of Iran-Contra was that if Congress is premature in granting immunity before the Department of Justice and the FBI are happy, then the chances of successful prosecution are greatly compromised.

MARTIN: So what happens next? What are we watching for here?

SALTZBURG: We're watching for something that is often very difficult to find, and that is a signal from the Department of Justice and the FBI as part of it that they are done with their investigation of General Flynn. The one thing that's easy to recognize is if they charge him with any type of offense, we'll know that the investigation is probably complete. But if he's not charged, the probability is that no one will say anything. Could Congress give him immunity now because the FBI is through its investigation? Congress may not be sure whether the FBI is through its investigation. And we learned right before the last presidential election that sometimes the FBI thinks it through with an investigation and discovers that it really isn't.

MARTIN: That's Stephen Saltzburg. He's professor of law at George Washington University. He's also, as he alluded to, a former associate independent counsel in the Iran-Contra investigation. He also served as deputy assistant attorney general. He was in the criminal division of the U.S. Department of Justice, among a number of other positions he held in government service. Professor Saltzburg, thanks so much for speaking with us.

SALTZBURG: Thank you. Transcript provided by NPR, Copyright NPR.