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April 1, 2017


Not all immunity in criminal cases is the same. Asking for immunity does not mean that one is guilty of any crime, but it doesn’t mean that one is not guilty of a crime, either.  It is a deal made between the prospective defendant and the prosecution through the former’s “proffer,” where the defendant tells the prosecution what he has to offer and the prosecution either grants or denies immunity.

However, there are varying degrees of immunity promised and if they are not enforced to the letter guilty defendants can go free. A case in point is that of Ollie North, who was guilty as one can be and convicted in the Iran-Contra matter (where both he and Reagan should have gone to jail) but who walked after an appellate court found that the prosecution had used evidence proscribed by the immunity agreement they had agreed to with North. Like a good Marine, he had fallen on his sword to protect Reagan and later wound up as a right wing patriotic hero on TV.

It is noteworthy in retrospect that the appellate finding in North’s favor did not speak to his guilt but rather to what they held to be his conviction by tainted evidence not within the parameters of his immunity agreement. Thus from the prosecution’s point of view, entering into immunity agreements can present problems at the appellate level when defendants on appeal allege that their convictions were obtained by presentation of evidence that was off-limits at the trial by virtue of understandings within the immunity agreement. As such, immunity agreements are not to be entered into lightly.

If I do say so myself, upon hearing yesterday that Flynn was seeking an immunity agreement with the three investigative bodies (House and Senate Committees and the FBI), I predicted that they would not enter into such an agreement, at least not yet, since (1) It is too early in the investigations to know what evidence they already have or will have without handing out immunity agreements, or in the alternative, (2) They may already know enough about Flynn’s Russian and Turkish and perhaps other connections to seek his indictment and that of others without resort to any such information Flynn could supply them.

If so, there is nothing to be gained by handing out immunity to Flynn other than a possible appellate reversal upon conviction perhaps years down the road. I think that no one of the three investigative bodies will agree to immunity with Flynn unless after they complete their investigations they think what he has to contribute could be helpful in prosecuting him and others who might have been implicated and indicted with the addition of his evidence to that they have already gathered. Parenthetically, I note that congressional committees are not charged to criminally prosecute; that is the domain of the FBI.

There may be many and good other reasons why neither of the congressional committees nor the FBI are going to enter into an immunity agreement with Flynn so early in the investigations (which will probably take months). The intelligence community has been greatly underrated by presidential tweets and right wing alt-news outlets. That community is the best in the world and is gathering evidence at a breakneck pace even as I write this commentary and will report real world facts to the American people as opposed to Trump’s narcissistic world of self-created and imaginary facts.

I have no way at this juncture of knowing what such findings of these three investigative bodies will look like, but given what we the people know so far, I think when this ugly mess is finally uncovered that Flynn will have company in the dock, though he can of course be pardoned by the president. However, I know of no constitutional provision that permits a president to pardon him or herself, so we will see where the facts and evidence lead us in this effort to save our democracy from authoritarian rule.   GERALD      E





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