On Lawfare Andrew Kent discusses the various legal maneuvering involved in General Flynn’s offer of immunized testimony. I found this devious bit interesting:
The immunity statute grants only “use immunity.” An immunized witness before Congress does not get blanket immunity for the entire transaction about which he or she testifies. Rather, no testimony under the court order granting congressionally-requested immunity, “or any information directly or indirectly derived from such testimony,” “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.”
Why seek such apparently limited use immunity from Congress? In practice, use immunity can turn into full transactional immunity. It turns out that it can be devilishly difficult for prosecutors in a later criminal case to prove that no evidence they are presenting was “directly or indirectly derived” from immunized testimony before Congress.
The prosecutions of Oliver North and John Poindexter for Iran-Contra crimes fell apart in just this way. Both were granted use immunity by a select congressional committee investigating Iran-Contra, and the public testimony under the immunity grants was televised. In the later criminal prosecutions, the D.C. Circuit ruled that protecting the defendants’ Fifth Amendment privilege against self-incrimination essentially required the prosecution to affirmatively demonstrate that none of its witnesses were in any way affected by that testimony. This proved impossible.
Witnesses can compound the problems for prosecutors by ranging widely in their immunized congressional testimony. If Flynn were immunized by Congress, it would be for testimony about Russia. But a friendly House committee member, say Chairman Nunes, might lead him to talk about his potentially illegal work for Turkey, thereby extending the immunity in practice to that topic.
An unwillingness to take responsibility for bad behavior? Or another Ollie North “I know what’s good for this country!” attitude? Or is this just hypotheticals and General Flynn really wants to dump the dirt on Trump?
Here’s a poke. I swear there’s a pig in there somewhere.
