IMMUNIZING HIGH CRIMES AND MISDEMEANORS: LIEUTENANT GENERAL MICHAEL FLYNN V. LIEUTENANT COLONEL OLIVER NORTH
Untitled, Watercolor, 29" x 21", Richard J Van Wagoner, Circa 2005, Courtesy Van Wagoner Family Trust**
My memory of Phil Hartman doing his Ronald Reagan on SNL during the Iran-Contra scandal came into focus when I heard Flynn's generous offer to share what he knows with the Senate, House and FBI in exchange for immunity from prosecution. Responding to a Nora Dunn reporter’s question, “Which is worse, knowing or not knowing?” about the scandal, Hartman's Reagan said:
Well, all I can say is, . . . I . . . didn't . . . know. And well we're trying to find out what happened because none of us know. I hope I've answered your questions as best I could given the very little that I know.
News of Flynn’s offer, while titillating, may be nothing more than flirtation or manipulation of one component of the larger story. Those who work within the White House limelight and its penumbra must be willing to take the political (or criminal) bullet for POTUS in the interest of his preserving deniability. That, along with frequent invocation of “Executive Privilege” and “National Security” as ruse, present significant barriers to investigating and discovering presidential monkey business. That said, one's loyalty may end where the driveway into the Federal Correctional Facility begins. Maybe the fix is in, in any event, because the guy for whom he may ultimately take a bullet has the power to heal through pardon. Maybe they have each other's backs.
And the administration's explanation of the 17 days between Sally Yates' disclosure to the White House and Flynn's departure—Flynn was dismissed not because he did anything wrong but because of those illegal leaks—is in my estimation just another manifestation of Trump's malignant narcissism: Trump can do no wrong and has nothing to apologize for.
We can be certain Flynn has extremely capable counsel who will be equally matched by counsel for the Senate, House and Department of Justice. And if Flynn is granted immunity, which will depend on many of the considerations below, his counsel will help him maneuver through and around most of any remaining land mines. He may even be able to pull off an Oliver North, but I suspect any special prosecutor (and the House and Senate . . . ok not the House but the Senate) will have learned history’s lesson.
Parenthetically, I have never heard of the FBI granting immunity. In my experience, that falls within prosecutorial discretion and not investigative function. Whenever a client tells me an investigator promised leniency in exchange for “doing the right thing”—answering questions, easing his conscience, mitigating consequences of bad behavior, giving the investigator something positive to share with the prosecutor in the target’s behalf—I insist on getting it in writing, and from someone with authority to make the promise (unless it’s too late, the client having fallen for it). To be a capable interrogator, a criminal investigator must be a convincing liar. Believe me, they do not take that as an insult. Lying is part of their job description but lying to them is a crime.
An Immune System of the Body Politic
The Fifth and Fourteenth Amendments to the United States Constitution suggest governments in the United States—federal, state, local—are not despotic. A truism, at best. Conceptually, a person is under no compulsion to participate in his own prosecution through disclosure or confession, but courts have narrowly construed those protections. Courts sanction almost every means creative investigators can imagine to trick people into “voluntarily waiving” their Fifth Amendment rights, short of beating it out of them. Investigators hate it when people lawyer up. I remember a case in which investigators read a drunk target his Miranda rights after lying to him about the purpose for the meeting to get him to come in for questioning. He, and the alcohol, agreed to talk based on the lies they told him about the purpose for the meeting. They then lied to him over 70 more times, using every trick in the book (there is a book), until he gave them what they wanted. The appeals court said his wavier of Fifth Amendment rights was "voluntary." But I digress.
On occasion prosecutors conclude someone holds information of such importance they are willing to barter for it. Other times the government chooses to compel disclosure through grants of immunity even when its repository has no interest in sharing: if the government gives immunity from prosecution, the recipient can be compelled to disclose but might prefer to sit in jail rather than suffer the consequences of being considered a snitch. Being a snitch can be bad and being dead can be worse.
A subject or target of a criminal investigation, say Flynn, who thinks he has something of value to exchange for immunity from prosecution, might make the first offer. Discussions like this frequently occur when the government wants to hook a big fish and, if it means landing that yuge one, catching and releasing smaller ones.
Immunity comes in different sizes. Participants want as much as possible in exchange for as little as possible—the epitome of a free market, what a willing buyer will pay and a willing seller will accept—and contract law, with the threat of losing one's liberty interest overshadowing the process. The government wants valuable, admissible evidence with a narrowly-confined grant of immunity. The person seeking immunity wants a “get out of jail free card” allowing him to disclose everything he’s ever said, stolen, damaged, assaulted, killed, buried, smoked, snorted or f*&$ed.
Untitled, Oil on Canvas, 20" x 34", Richard J Van Wagoner, Circa 2005, Courtesy Van Wagoner Family Trust**
Flynn’s Immune System
No one should be too quick to let the General off the hook. Considerations for granting immunity may include:
• What is the information and what’s its value to the government? The government will not “buy a pig in a poke,” a comment I hear virtually every time I engage a prosecutor in an immunity discussion. The government usually requires a “proffer” from the lawyer, that is, a fairly detailed description of what the lawyer believes the client has to say so the government knows whether it would receive anything of value in exchange for a grant of immunity. The proffer will be given in the context of settlement discussions, which courts encourage, so the Rules of Evidence generally prohibit its use in court. Moreover, the lawyer can fashion the proffer in such a way as to otherwise prevent its use as evidence. It’s for discussion purposes only. It helps when the prosecutor and defense attorney trust each other.
• Does the person seeking immunity have information on someone higher in the food chain than himself? An already disgraced former General is a compelling target, but in context the DOJ, Senate or House . . . ok not the House, might consider a campaign manager or the candidate himself who, say, collaborated with a cold war enemy to influence the election, as more compelling.
• Does the person seeking immunity have information about crimes against the United States committed by others that are more serious than his own crimes?
• Does the government already have the information that is being offered, making a grant of immunity an exchange of something for nothing?
• If the government already has the information being offered, is the government’s possession in a form that can be used in court: does it satisfy the Rules of Evidence?
• Is the person seeking immunity credible, believable, if he must be called as a witness? Clearly, the fact that someone has bartered for his freedom in exchange for becoming a government witness makes him and his credibility easy targets for impeachment on cross examination.
• Is the information credible, believable, verifiable through some independent source?
• How broad should the grant of immunity be in order to obtain the information?
The Iran-Contra scandal tells a cautionary tale. Oliver North, an integral player in the Reagan-era political scandal known as the Iran-Contra Afair, was a decorated marine and Vietnam War veteran who served as deputy director for political-military affairs for the National Security Council from 1981 to 1986. During his time at the NSC, he was promoted to lieutenant colonel but resigned his commission in 1990.
One scandal in which North was instrumental during his tenure at the NSC concerned the diversion of profits from the sale of weapons to Iran to Contra rebels in Nicaragua. While North thought the diversion was a "neat idea," Congress which had passed the Boland Amendment making it illegal, didn't. Congress and the Department of Justice also took a dim view of North's perjury before congress and his destruction of evidence. As a recent law school graduate, I listened carefully to the testimony of his secretary Fawn Hall who had secreted documents in her panties for later shredding. Ok . . . maybe the law grad thing had nothing to do with it.
The following is from a decision by the United States Court of Appeals for the District of Columbia. It explains one set of potential problems with the Flynn proposal:
“Congress established two committees charged with investigating the sales of arms to Iran, the diversion of proceeds therefrom to rebels (or "Contras") fighting in Nicaragua, and the attempted cover-up of these activities (controversial events popularly known as "the Iran/Contra Affair"). In July of 1987, Lieutenant Colonel Oliver L. North, a former member of the National Security Council ("NSC") staff, testified before the Iran/Contra congressional committees. North asserted his Fifth Amendment right not to testify before the committees, but the government compelled his testimony by a grant of use immunity pursuant to 18 U.S.C. § 6002. North testified for six days. [I’m guessing this was worked out in advance between his lawyers and lawyers for the congressional committees: he would take the Fifth Amendment and Congress would then grant him use immunity, which is defined below.] His testimony was carried live on national television and radio, replayed on news shows, and analyzed in the public media.
[18 U.S.C. § 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.]
Contemporaneously with the congressional investigation, and pursuant to the Independent Counsel statute, . . . the Special Division of this Court . . . appointed Lawrence E. Walsh as Independent Counsel ("IC") and charged him with the investigation and prosecution of any criminal wrongdoing by government officials in the Iran/Contra events. As a result of the efforts of the IC, North was indicted and tried on twelve counts arising from his role in the Iran/Contra Affair. After extensive pretrial proceedings and a twelve-week trial, North was convicted in May of 1989 on three counts: aiding and abetting an endeavor to obstruct Congress . . . ("Count 6"); destroying, altering, or removing official NSC documents . . . ("Count 9"); and accepting an illegal gratuity, consisting of a security system for his home . . . ("Count 10"). North now appeals his convictions on these counts.
North argues that his Fifth Amendment right against self-incrimination was violated, asserting that the District Court failed to require the IC to establish independent sources for the testimony of witnesses before the grand jury and at trial and to demonstrate that witnesses did not in any way use North's compelled testimony. North further argues that his Fifth Amendment right was violated by the District Court's failure to determine whether or not the IC made "nonevidentiary" use of the immunized testimony.
North's argument depends on the long-recognized principle that a predicate to liberal constitutional government is the freedom of a citizen from government compulsion to testify against himself:
And any compulsory discovery by extorting the party's oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.
The District Court erred in failing to hold a full hearing . . . to ensure that the IC made no use of North's immunized congressional testimony. North's convictions on all three counts are therefore vacated and remanded to the District Court for a . . . proceeding consistent with this opinion.”
*My brother the fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed nearly 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in lastamendment.com are hers