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In Like Flynn – Up to His Neck in Immunity Confusion

 

For the two or three people who read my blog, you may have noticed that I have been off the grid lately.

If you look at the timeline on that as closely as reporters are looking at Devin Nunes’ trips to the White House in his epic performance to obscure his sources, you may have noticed when this happened.

Last Fall. Ring any bells? Remember what was going on last October and November? That’s right. The “Election”, which by now has taken on the warm fuzzy feeling I used to get in my gut when I was sick as a kid and my mom forced me to drink cod liver oil. It made me sicker. But my mom said it was good for me so I drank it down.

I’ve been drinking the cod liver oil of the News for the past several months with the gusto of an addict. Suddenly I can’t get enough. There are so many legal issues flying around that it makes my head spin. I kinda love it when I don’t hate it.

My problem is how to explain the legal ramifications of everything we are seeing on TV these days. It’s about as easy as it was for my mom to explain to me why I had to guzzle that horrible elixir. I sort of gave up trying.

Still, I am pretty sure I know more about it than 99% of the reporters out there, whether they are on “The Left” or “The Right”- whatever those words mean anymore. But something snapped this week when I saw the incompetent and inaccurate reporting that has surrounded this business of General Michael Flynn’s (Ret.) request for immunity.

What a bunch of idiots there are on TV, being paid tons of money to explain stuff to the public that they simply do not understand. It makes me sick. As sick as a cod liver oil overdose.

So, let’s give it a shot. Here are some the current greatest hits of cluelessness dominating the news right now:

Seeking Immunity From Prosecution Means You Are Guilty

This is ironic. Flynn himself was all over the airwaves last Fall, claiming that it did. He crowed that Clinton must be guilty since those around her were seeking immunity. Now he has to eat his words, as he himself is apparently seeking immunity. Does that mean he is Guilty?

Last Fall Trump supporters were sure that it did. Now they protest. Too much perhaps.

I’m not taking sides. Both sides are wrong when they make absolute proclamations about legal matters. They are never that simple. Granted, seeking immunity is not usually a good sign. But even innocent people, in fact especially innocent people it can be said, seek immunity.

I had a case a few years ago where my client was duped by a rich Microsoft Executive to launder money for him. My client had no idea that he was doing that. He simply thought he was doing business with someone who wanted to lend him a hand. (Note: I can talk about this because everything I say here was quoted by the prosecutor in court, who repeated my argument that he was an innocent victim of the embezzler and that wound up being quoted all over the front page of the Seattle papers).

Turns out the Microsoft guy was embezzling money, then trying to hide it by tricking my client into letting him act as his business partner. After checking it out, I was sure that my client was simply an innocent victim of this con artist thief. But what to do?

It can be an impossible situation to be in, and it is sometimes equally impossible to advise my clients on what to do. But, that is what I get paid to figure out and that means I need to know how it all works.

Unlike most of the alleged “experts” I am seeing on TV.

In the vast majority of cases you only consider seeking immunity if you are a “target” of an investigation. This means that law enforcement believes that you are involved in the commission of a crime. When the Feds are involved, they generally have some pretty compelling evidence to put you in this quandary.

You have to explain to them that you are not, and risk proving to them the opposite. It’s like Abraham Lincoln said, with a twist: “Say nothing and be thought a criminal, or speak and remove all doubt.” Or was it Mark Twain? People disagree about that.

Just as they disagree about whether or not someone is guilty. Trying to persuade those who think your client is guilty that they are, in fact, innocent can be the goal of talking to prosecutors.

Or trying to get some leniency for a client who is totally guilty in exchange for their information about other people who are involved in the crime can be the goal.

Or trying to persuade the prosecutor that your client is not guilty of the crime being investigated, but that they look guilty because they did some other crime.

And the entire time you are risking exposing your client to prosecution for a brand new crime: Lying under oath. As you can see, it’s complicated. And dangerous for the client.

The term that is used to describe providing the evidence is “Proffer”. You may hear people talk about “Queen for a Day”, referring to the procedure when your client sits down and tells the authorities everything they know in exchange for a break.

This is (or should be, assuming the lawyer is not as clueless as those experts on TV) all written up in a formal proffer letter. Problem is, at least in some jurisdictions, the letter is not really worth the paper it is printed on.

Contrary to what people think, the letter makes no real promises. It is about as non-committal as my mom would have been if I had asked for candy if I agreed to quaff that liver oil. “We’ll see….” would have been her typical answer. Same thing here.

The problem is how can the prosecutor agree to a specific deal before they have detailed, truthful, and relevant information from your client? The truthful part is often the real landmine.

It is amazing to me how many people lie when they do these deals, often when they could not be convicted of the original crime being investigated. If they do, off to prison they go. Just ask Martha Stewart.

It is a very difficult position to be placed in, to say the least. What is really bad is that the Feds know what evidence they have. But they don’t have to tell you before you talk. Like so many things in criminal prosecutions, it is a one-way street.

Other than using the information to prosecute a suspect for lying, the evidence provided cannot be used against the suspect if no immunity agreement can be reached after the proffer session.

Immunity agreements may not be reached for a bunch of reasons. For example, the information provided may be considered false, even if it isn’t. But that is not all. It can be seen as not very helpful, or too old, or not important, or may be something they already learned from other suspects.

Typically, especially when there is a big investigation, such as an international drug conspiracy (a typical federal case), it is a race to the U.S. Attorneys’ Office. First come, first served in terms of getting the best deal. If you wait too long you might miss the boat because your information may have already been provided by other suspects. Jump the gun and you might be providing information that they had no idea about.

Although theoretically this information is not supposed to be used against you, you’d be surprised. We could get into a giant discussion about use immunity and transactional immunity and so on. But this topic is too extensive to cover completely in one short blurb like this.

The point here is that this is extremely complicated, not the simple black or white explanation being foisted on the public.

One thing is not that complicated about all of this. If your client is exposed to liability by another person who you know is cooperating and providing information, you tell your client to shut up. The last thing you do is tell them to publicly criticize the prosecution for investigating them in the first place by calling that investigation a “Witch Hunt”.

That brings us back to the idea of “protesting too much.” Because it makes you look guilty. Simple.

Here are a few other simple aspects to this confusion:

Cops Don’t Give You Immunity, Prosecutors Do

One “expert” on CNN today was talking about how the FBI had to decide whether to grant Flynn immunity. While they have input, they are not the ones who take cases to court. Prosecutors do.

You may see the detectives on Law and Order telling suspects that if they talk they will make sure they get a deal. It’s actually one of the few accurate things on that show, since cops do that in real life. But they are lying. In real life it is totally up to the lawyers, not the cops.

Congress Won’t Grant Immunity Because They Believe Flynn Is Guilty

I heard another “expert” say this today. Wrong.

No, it is just that they know that if they grant immunity it might mess up the FBI investigation. So, they are going to leave it up to the right people to make the call.

At least they are good at something.

The People Giving Information Always Snitch On Their Bosses, Not Their Minions

You would think this would be the case. But you’d be surprised.

I have a colleague who tried a yearlong conspiracy case in federal court. She represented a low-level drug runner. The main witness against her client was the Kingpin of the entire Conspiracy. He had a lawyer who was smart enough to run to the U. S. Attorney first, and get a deal before anyone else made a move.

It happens.

So Flynn may have no information at all about Trump. Or he may. Like everything about this process the only people who know what the FBI knows are the FBI (at least when the suspects don’t work at the White House). Here it is unsure.

Which is all we can say about Flynn and what he has to say. We can only respond the way my mom used to: “We’ll see.”

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