WEBVTT - Michael Flynn Immunity Bid Stalls in Congress (Audio)

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<v Speaker 1>You're listening to Bloomberg Low with Michael Best in New

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<v Speaker 1>York and Greg's story in Washington, d C. The House

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<v Speaker 1>and Senate Intelligence Committee investigations into possible Russian tampering in

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<v Speaker 1>the two thousands sixteen presidential election and also into possible

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<v Speaker 1>contacts between the Trump campaign and Russian agents has taken

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<v Speaker 1>center stage. Former National Security Advisor Michael Flynn, who lost

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<v Speaker 1>his job after the shortest tenure in American history as

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<v Speaker 1>National Security Advisor because he failed to fully describe his

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<v Speaker 1>conversations with the Russian ambassador last year, could be a

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<v Speaker 1>witness in congressional probes, and now he has asked for

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<v Speaker 1>immunity before he testifies before Congress, and President Trump has

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<v Speaker 1>tweeted that he agrees with Flynn's request. Here to talk

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<v Speaker 1>with us about the immunity request by Michael Flynn or

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<v Speaker 1>Stephen Vladdock, professor at the University of Texas School of Law,

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<v Speaker 1>and Andrew Right, a professor at Savannah Law School. Andrew

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<v Speaker 1>the House and Senate Intelligence Committee is important as they

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<v Speaker 1>are not the prosecutors in this case. They're not the

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<v Speaker 1>people who will decide whether or not there are going

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<v Speaker 1>to be criminal charges against Mr. Flynn based on his

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<v Speaker 1>testimony or for any other reason. How does immunity work

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<v Speaker 1>in a situation like this? Sure, thanks for having me

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<v Speaker 1>on the show. So the House and Senate committees, under

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<v Speaker 1>a statute that was passed in can choose to grant

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<v Speaker 1>immunity through by means of a court order. Through if

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<v Speaker 1>it's in front of a committee like these are, it

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<v Speaker 1>would be a two thirds vote of the full committee,

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<v Speaker 1>and then they can seek a court order. That's basically

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<v Speaker 1>a ministerial job for the court to grant that order

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<v Speaker 1>to give what they call youth community or castorg our

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<v Speaker 1>immunity that would allow him to testify even over the

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<v Speaker 1>assertion of the Fifth Amendment privilege against self incrimination. That

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<v Speaker 1>statutory scheme also recognized, however, that there's a connection to

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<v Speaker 1>the Justice Department, So Congress has to give the Attorney

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<v Speaker 1>General ten days notice, which both allows the Attorney General

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<v Speaker 1>to um sequester or the information they've already gathered it

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<v Speaker 1>out to that witness to make sure that they have

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<v Speaker 1>a file that doesn't show that they actually use information

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<v Speaker 1>derived from the congressional testimony and gives the A G

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<v Speaker 1>and Department an opportunity to object if they think that

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<v Speaker 1>the congressional effort might complicate the prosecution or frustrated Steve,

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<v Speaker 1>it sounds as though the congressional investigators aren't inclined to

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<v Speaker 1>grant the immunity right now. But what goes into that

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<v Speaker 1>calculation for lawmakers and their investigators, Why would they give

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<v Speaker 1>somebody like Michael Flynn immunity? Well, I guess, I mean

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<v Speaker 1>the real question is whether they think that there are

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<v Speaker 1>material pieces of evidence and information that someone like Michael

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<v Speaker 1>Flynn has they can provide to the committee that he'd

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<v Speaker 1>be disinclined to provide but for the immunity. So, you know,

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<v Speaker 1>this is part of why oftentimes when these kinds of

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<v Speaker 1>issues come up, the first time you hear about it

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<v Speaker 1>is not in a tweet from the witness's lawyer. Rather

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<v Speaker 1>it's in, you know, after the committee has done some legwork,

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<v Speaker 1>after there's been some kind of propersition, where the committee

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<v Speaker 1>has a sense of exactly what kind of information they're

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<v Speaker 1>going to get in exchange for the immunity. That's the calculus.

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<v Speaker 1>And I think, you know, it's interesting here that there's

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<v Speaker 1>no suggestment that's happened, and that what's really going on

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<v Speaker 1>is a public relations campaign where Flynn lawyer is saying,

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<v Speaker 1>you know, he should get immunity, and no one on

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<v Speaker 1>the hill seems to be really you know, publicly talking

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<v Speaker 1>about it. Yeah, it does seem a little odd Andrew

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<v Speaker 1>that you know that a lawyer would go public with

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<v Speaker 1>a request like this when you when you talk about

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<v Speaker 1>doing something like a proffer, as Steve mentioned, what what

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<v Speaker 1>kind of discussions would usually happen between say a congressional

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<v Speaker 1>committee and somebody's lawyer before a decision got made. Well,

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<v Speaker 1>I think the committee would want to satisfy itself that

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<v Speaker 1>he has something that's juicy enough or important enough to

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<v Speaker 1>the committee's work that they would be worth sacrificing the

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<v Speaker 1>potential exposure he'd have for any crimes that were committed.

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<v Speaker 1>So they'd really want to know something about what do

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<v Speaker 1>you have a story to tell? And you know his

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<v Speaker 1>attorney's statement, there's been a lot made of the fact

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<v Speaker 1>that he said General Wind certainly has a story to tell,

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<v Speaker 1>and I think and you know that's that was sort

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<v Speaker 1>of pregnant with that idea that there might be something

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<v Speaker 1>juicy there. However, I think, you know the fact that

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<v Speaker 1>he went public with this is not the kind of

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<v Speaker 1>the way you woo a committee into actually granting an

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<v Speaker 1>immunity um border. So I think, you know, there's some

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<v Speaker 1>pretty good speculation here that they might not have that

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<v Speaker 1>much to offer, They're not offering that much to the committee,

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<v Speaker 1>and that this is kind of a public relations campaign, Steve,

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<v Speaker 1>as we've been discussing, this is immunity just for what

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<v Speaker 1>he might say to the committee, Not immunity from anything

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<v Speaker 1>having to do with the uh the issue of contact

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<v Speaker 1>with Russia. But as a practical matter, if somebody like

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<v Speaker 1>Mike Flynn were to get immunity, how difficult would it

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<v Speaker 1>make Would that make it to prosecute him for any

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<v Speaker 1>crime related to this investigation? Yeah, I mean it would

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<v Speaker 1>make it pretty hard. You know, not formally because you know,

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<v Speaker 1>depending on how the immunity is provided by the relevant

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<v Speaker 1>congressional committees, there are ways to do it that wouldn't

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<v Speaker 1>necessary early applied to a criminal investigation. But you know,

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<v Speaker 1>folks may remember that, you know, the Oliver North indictment

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<v Speaker 1>after Iron Contra blew up largely because there were questions

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<v Speaker 1>about the scope of the immunity he had had been

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<v Speaker 1>provided before testifying before Congress. There were concerns about whether

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<v Speaker 1>there were Fife Amendment implications for not you know, giving

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<v Speaker 1>him a similar treatment in a criminal prosecution. So, you know,

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<v Speaker 1>I think part of the complexity here is not just

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<v Speaker 1>the politics on Capitol Hill, but also the Andy was

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<v Speaker 1>talking about. I mean, the dynamic you're going to necessarily

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<v Speaker 1>have between the congressional investigators and the Justice Department. Um,

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<v Speaker 1>you know, at least some of whom might very well

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<v Speaker 1>want a pretty substantial bite at this apple if it

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<v Speaker 1>turns out that, you know, Michael Flynn can really be

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<v Speaker 1>tied to some of the more serious criminal allegations that

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<v Speaker 1>are being bandied about Andrew. One of the things that

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<v Speaker 1>has been different about this one, it seems, is that

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<v Speaker 1>the President of the United States has tweeted that he

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<v Speaker 1>supports Mr. Flynn's request for immunity because this is, to paraphrase,

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<v Speaker 1>a witch hunt, uh, this investigation in his view. How

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<v Speaker 1>unusual is it for a president to do something like that. Well,

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<v Speaker 1>first of all, it's totally unprecedented. And the second point

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<v Speaker 1>is it's problematic because a President Trump shouldn't know what

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<v Speaker 1>the FBI does or does not have in terms of

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<v Speaker 1>information within its investigation on Mr. Flynn, So he wouldn't

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<v Speaker 1>be in a position to know whether it's actually which

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<v Speaker 1>one or not absent some sort of improper contact with

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<v Speaker 1>the Justice Department. So that's one problem. The second problem

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<v Speaker 1>with that tweet is the fact that it creates the

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<v Speaker 1>perception that he might be publicly trying to signal to

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<v Speaker 1>Flynn to try and seek community or some in some

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<v Speaker 1>other way interfere with the natural processes of the Justice

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<v Speaker 1>Department and the FBI as they go forward with a

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<v Speaker 1>very serious counterintelligence to counter intelligence investigation. Steve, you only

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<v Speaker 1>have about a minute left, but I wanted to ask

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<v Speaker 1>you about Richard Painter and Norm Eisen had had a

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<v Speaker 1>column in the New York Times where they said, we

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<v Speaker 1>gotta go ahead and give Michael Flynn immunity because this

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<v Speaker 1>is so important that we need to get to the

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<v Speaker 1>bottom of what happened as quickly as possible. What do

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<v Speaker 1>you think about that? You know, I think that's I

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<v Speaker 1>think that's you know, good for headlines. I think it's

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<v Speaker 1>bad for policy. I mean, there are lots of reasons why,

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<v Speaker 1>you know, even if it's not good press, we really

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<v Speaker 1>want this investigation to go methodically and slowly and one

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<v Speaker 1>step at a time. Um and before we have a

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<v Speaker 1>better sense or at least before congressional investigators have a

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<v Speaker 1>better sense of just what Michael Flynn knows and just

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<v Speaker 1>what he did, you know to give him immunity a

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<v Speaker 1>sort of a knee jerk reaction. Um. I think it's

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<v Speaker 1>going to be a very myopic move um, and could

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<v Speaker 1>actually handstring the investigation down the road as opposed to

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<v Speaker 1>opening the doors to you know, getting there faster, as

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<v Speaker 1>as Eisman Painter Is suggested. Our thanks to Steve Laddock

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<v Speaker 1>of the University of Texas School of Law and Andrew Wright,

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<v Speaker 1>professor at Savannah Law School. That's it for this edition

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<v Speaker 1>of Bloomberg Law. We'll be back tomorrow thanks to our

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<v Speaker 1>technical director Charlie Valmer and our producer David Suerman. You

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<v Speaker 1>can find more legal news at Bloomberg, Bloomberg Law dot

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