I was talking with Charles last night, trying to understand this, and we both felt really confused about the whole situation (me being a not-this-kind-of-case attorney, and Charles having 1.5 years of law school and much more interested in this kind of case) - and this morning, I found this latest megathread by Abramson, explaining it much more clearly, though it is still intensely complex and convoluted:
Seth Abramson @SethAbramson 15 hours ago
(1) What follows is analysis of a news story, not legal advice or the practice of law. If you need an attorney, seek one in your local area.
(2) Certain legal concepts discussed in this thread have been slightly simplified for the purposes of explaining their contours via Twitter.
(3) There are 3 major types of immunity: use immunity, derivative use immunity, and transactional immunity. The first is worst, last best.
(4) Transactional immunity means you can't be prosecuted for any crime involved in a discrete course of conduct. Defendants love/want this.
(5) Use immunity says testimony in a criminal case can't be used to charge you with a crime or as evidence against you. Prosecutors love it.
(6) Derivative use immunity means your testimony can't be used against you, _nor_ can any evidence discovered as a result of that testimony.
(7) Defense attorneys always ask for transactional immunity. Prosecutors always say no--unless it convicts a major figure, like a president.
(8) As to Flynn, it seems the FBI already has the goods on him for making false statements. So use immunity doesn't help him on that charge.
(9) Flynn could seek use immunity on a crime no one knows about yet. But with so many investigating, he knows they'd get him by other means.
(10) And of course it doesn't make sense to seek use immunity for a crime you committed that you know _no one_ will ever find out about.
(11) Meanwhile, Flynn and his attorney would have known that it's too early to get transactional immunity. There's more investigating to do.
(12) All of which makes Flynn's immunity offer bizarre. (a) They're never made publicly; (b) there are 3 entities investigating him, so...
(13) he'd need immunity from all 3 to make it useful; (c) it's too early to ask for transactional immunity unless he can deliver POTUS; (d)
(14) he wouldn't ask for use immunity on a charge he's now dead to rights on; (e) he wouldn't ask for _any_ immunity for a crime he knows...
(15) no one will ever discover; (f) his attorney has no info on what the feds have, so how can he determine how much danger his client's in?
(16) And (g) before immunity is given you make a proffer--a broad statement of what evidence you have--but it seems we don't have one here.
(17) For those who think this is mere theater, think again: attorneys can't make misrepresentations to the feds. So this is a "real" offer.
(18) All of which means: (i) Flynn is seeking use immunity on a _bigger offense_ than the one the feds already have him dead to rights on...
(19) which already carries 5 years in federal prison; (ii) Flynn's either delivering a bigger fish (POTUS), a _huge_ number of smaller ones,
(20) or a slightly smaller one (say Manafort or Kushner) who committed a _much_ more serious crime than anything Flynn did; (iii) Flynn...
(21) thinks he's about to be in an "immunity race," in that he must beat out many other co-defendants in seeking immunity from the feds;... (22) (iv) Flynn may have committed a crime worse than "false statements" that would be difficult to prove other than with his testimony...
(23) which is true for crimes largely based on words (e.g. threats, promises, oral agreements) with largely unavailable (foreign) witnesses.
(24) Flynn making an immunity request this early lets investigators know that if they hit a wall, he likely has _something_ that would help.
(25) And not to be morbid, but you'd tend to make a _very_ public request for immunity if you thought you might be killed by a co-defendant.
(26) Flynn so _publicly_ implying he has the goods on Russiagate greatly _increases_ the risk of discovery for anyone trying to silence him.
(27) Let's be clear: Flynn's immunity request _very strongly suggests_ there was a criminal conspiracy at the highest levels of government.
(28) Let's be clear on this, too: Flynn's request all but confirms Russiagate as the most serious political scandal of any of our lifetimes.
(29) Flynn may yet get his immunity. He will if prosecutors hit a wall--if they reach a point where only Flynn can give them what they need.
(30) Flynn's offer is also an implicit--if inadvertent--encouragement for other defendants to flip with better terms (or targets) than him.
(31) The National Security Adviser to the President of the United States indicating he has criminal culpability means America is _changed_.
(BONUS) _No one_ in this scandal is getting pardoned--ever. The general theme (treason) is _so_ hot that _no_ politician will risk a pardon.
(BIO) I was a criminal attorney for 7 years in 2 states, representing thousands of clients in that time in cases up to first-degree murder.
