At the end of March, President Trump tweeted out that his former national security adviser Mike Flynn should seek immunity and testify before the House committee investigating the Trump campaign’s contacts with Russia.
Now, this is unusual. Normally, an administration in the sights of congressional investigations wants its members or former members to testify without immunity. This is because immunity is seldom granted by congressional investigating committees, and the request for immunity leads the public to believe that the official and the administration is hiding something. This can then be exploited by the opposition indefinitely, until the official testifies. That will likely happen in the Flynn case until he gets immunity and testifies.
Flynn is not only within his rights to demand immunity, but most lawyers would advise him to resist testifying without it. The investigating committee can ask him anything, and under oath the slightest misstatement before vengeful congressional opponents can be the cause for the appointment of an independent prosecutor and years of costly lawyer time to stop or defend an investigation.
Witness, for example, the calls now from the Democrats for an independent prosecutor for Attorney General Jeff Sessions, on grounds that he failed to answer an ambiguous and poorly-phrased question during his confirmation hearings.
An objective person looking at the question and the answer in the Sessions case could easily conclude that he gave a truthful answer to a poorly-phrased question, but the attorney general has had to recuse himself from the Justice Department’s consideration of the truthfulness of his response.
The offer from Flynn is therefore not without risk to him. Immunity is good as long as he testifies truthfully. Flynn, even under immunity, risks giving an answer that he thinks is truthful but can be twisted, as Session’s was, so that he too has to defend against the appointment of a special prosecutor.
There is also an ongoing FBI investigation, but this need not be an obstacle to immunity. Congressional immunity is only a problem if it produces information that the prosecutor would not have had without the congressional investigation. If Flynn has been interviewed by the FBI — a fact the congressional committees can ascertain — they should have no concern about interfering with that investigation. Whatever Flynn said in that interview, or whatever he did that was inconsistent with the evidence the FBI has already acquired, could result in his prosecution if it is different from what he tells Congress.
Trump’s tweet can be seen as confidence that he has nothing to hide. The reaction among the Democrats and the media will be interesting to watch.
Thus far, the media, instead of pressing the committees to accept Flynn’s offer, are pointing out that this would immunize Flynn against prosecution for his possible crimes. They note that Oliver North — one of the key figures in the Iran-Contra scandal during the Reagan administration — avoided prosecution because of his immunized testimony before the congressional investigating committee.
It’s a good bet that the Democrats on both the House and Senate committees will do the same thing, objecting to the grant of immunity on grounds that this will protect Flynn against eventual prosecution. Coincidentally, it will also allow the Democrats to exploit the innuendo that Trump and Flynn have something to hide, treating Flynn’s offer to testify with immunity as a ruse to prevent them from getting to the bottom of the allegations against Trump.
Rep. Adam Schiff, D-Calif., the leading Democrat on the House Intelligence Committee, noted that it was a “grave” matter when a national security adviser to a president asks for immunity from prosecution, and “there is still much work and many more witnesses and documents to obtain before any immunity request from any witness can be considered.” Delay is in the air and on the script.
However, if later investigation, or documents, indicate that Flynn was untruthful, the committee can always call him back. Congressional immunity does not protect a witness against the consequences of truthful testimony.
The Republicans, which control both committees, should immediately grant Flynn’s offer to testify with immunity. There has never been any significant evidence for the idea that the Trump campaign actually collaborated or coordinated with Russia in its efforts to influence the presidential election, but the controversy — promoted successfully thus far by the “Resistance” Left — has shadowed Trump’s early presidency.
Peter Wallison is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a senior fellow at the American Enterprise Institute, and was White House counsel in the Reagan administration.
Source: American Enterprise Institute