With media’s rush to judgment, Flynn right to request immunity

Bottom line up front: Judgment of former national security advisor Michael Flynn should be withheld until all the facts are clear. Of course, such a conclusion does not have the allure of one asserting that the very request for immunity from prosecution is an indication of guilt, either of the party requesting or that of some other person higher in the hierarchy at the White House. But not so fast: Why rush to judge?

When first considering this column, we were overwhelmed by mainstream press commentary that engaged in what might be called “rush to judgment.” It appeared as if the very request for immunity signaled guilt, obviating the need to wait for the relevant investigations to play out over time.

{mosads}It would be as if someone who pleaded the Fifth Amendment right against self-incrimination were guilty simply for doing so. Of course, Flynn’s comments during the campaign, essentially asserting that point, does not help matters – many would like him hoisted with his own petard. After all, Flynn previously criticized Hillary Clinton’s aides for asking for similar treatment during the 2016 campaign.

But, fairness and due legal process demand an investigation before condemning someone, even if only a political condemnation. There is no rush — both houses of Congress and federal prosecutors can take their time to assess Flynn’s offered testimony and specifics of an immunity deal. Per Mayer Brown writing as the 2014 Congress began, “Congress can compel the production of documents and sworn testimony from almost anyone at almost any time.”

“In sum, the legal authority of Congress to seek and use investigatory information is extremely broad and is subject to only minimal oversight by the courts. Absent clear violations of substantive constitutional rights, there are few formal restraints on congressional action, and recourse to the judiciary for relief from such action is extremely limited.”

Dershowitz: “I can not for the life of me figure out” why Flynn asked for immunity https://t.co/AD4QZQGrGi pic.twitter.com/Jjgsn3G7wu

— The Hill (@thehill) April 2, 2017

Flynn would likely face sanctions if he refused to testify without a grant of immunity, especially if the hearings were held in camera to protect classified information. Or we might have to endure a reply like an Ollie North repeatedly invoking the Fifth Amendment in a public hearing. A letter of Flynn’s lawyer, Robert Kelner, did not help his case. On Mar. 31, Ryan Lizza of The New Yorker reported that Flynn chose to be represented by Kelner, a self-described #NeverTrump Republican who voted for the independent candidate Evan McMullin. By selecting Kelner, it might indicate Flynn may be signaling he may turn against the president, per Lizza.

On Mar. 30, Kelner argued his client was willing to be interviewed by congressional committees as part of their investigation of Russian interference in our elections and potential collusion of President Trump’s associates with Russian officials. The condition was that Flynn would only testify if he is granted immunity. Kelner said no “reasonable person” who has a lawyer would answer questions without assurances that he would not be prosecuted, given calls from some members of Congress that Flynn would face criminal charges.

We concur with national security reporter for The Hill, Morgan Chalfant. On Mar. 31, she posed several questions that might be asked of Flynn by investigators. We believe three of the five are most pertinent to our theme of refraining from a rush to justice.

First, “Who knew what about Flynn’s Russia contacts, and when did they know it?” Second, “What did the Trump campaign know about Flynn’s payments from sources in Russia and Turkey?” And third, “Did Flynn have any other foreign contacts besides Russia?”

Top Intel Dem: “A grave and momentous step” for Flynn to request immunity https://t.co/hWKqOAH07N pic.twitter.com/TNL77WCGeE

— The Hill (@thehill) March 31, 2017

Answers to the above questions can and should be posed prior to any grant of immunity to Flynn. His responses could be used to determine whether it ought to be offered to him.

Congress has been deferential in exercising its immunity powers to avoid interfering with criminal investigations; we share the position of the chief White House ethics lawyers for Presidents George W. Bush and Barack Obama, Richard Painter and Norman Eisen, respectively. They state  that, “Immunity should be granted as soon as Congress and prosecutors are persuaded that Mr. Flynn has information that will lead to a criminal case against one or more people at least as important to the alleged wrongdoing as Mr. Flynn may be.” Note that the grant of immunity would take place at the end of the process of gathering facts from investigations, rather than at the beginning.

In conclusion, we hold that judgment should be withheld until all the facts are clear. And as soon as Congress and Department of Justice prosecutors are convinced that Flynn has information that will lead to a criminal case of higher-ups, then immunity might be granted or he might be subpoenaed.

Dr. Raymond Tanter served as a senior member on the National Security Council staff in the Reagan-Bush administration and is now Professor Emeritus at the University of Michigan. Edward Stafford is a retired Foreign Service officer; he served in Political-Military Affairs at the State Department, as a diplomat with the U.S. Embassy in Turkey, and taught at the Inter-American Defense College.

The views of contributors are their own and not the views of The Hill.