Speaker 1: You're listening to Bloomberg Low with Michael Best in New
Speaker 1: York and Greg's story in Washington, d C. The House
Speaker 1: and Senate Intelligence Committee investigations into possible Russian tampering in
Speaker 1: the two thousands sixteen presidential election and also into possible
Speaker 1: contacts between the Trump campaign and Russian agents has taken
Speaker 1: center stage. Former National Security Advisor Michael Flynn, who lost
Speaker 1: his job after the shortest tenure in American history as
Speaker 1: National Security Advisor because he failed to fully describe his
Speaker 1: conversations with the Russian ambassador last year, could be a
Speaker 1: witness in congressional probes, and now he has asked for
Speaker 1: immunity before he testifies before Congress, and President Trump has
Speaker 1: tweeted that he agrees with Flynn's request. Here to talk
Speaker 1: with us about the immunity request by Michael Flynn or
Speaker 1: Stephen Vladdock, professor at the University of Texas School of Law,
Speaker 1: and Andrew Right, a professor at Savannah Law School. Andrew
Speaker 1: the House and Senate Intelligence Committee is important as they
Speaker 1: are not the prosecutors in this case. They're not the
Speaker 1: people who will decide whether or not there are going
Speaker 1: to be criminal charges against Mr. Flynn based on his
Speaker 1: testimony or for any other reason. How does immunity work
Speaker 1: in a situation like this? Sure, thanks for having me
Speaker 1: on the show. So the House and Senate committees, under
Speaker 1: a statute that was passed in can choose to grant
Speaker 1: immunity through by means of a court order. Through if
Speaker 1: it's in front of a committee like these are, it
Speaker 1: would be a two thirds vote of the full committee,
Speaker 1: and then they can seek a court order. That's basically
Speaker 1: a ministerial job for the court to grant that order
Speaker 1: to give what they call youth community or castorg our
Speaker 1: immunity that would allow him to testify even over the
Speaker 1: assertion of the Fifth Amendment privilege against self incrimination. That
Speaker 1: statutory scheme also recognized, however, that there's a connection to
Speaker 1: the Justice Department, So Congress has to give the Attorney
Speaker 1: General ten days notice, which both allows the Attorney General
Speaker 1: to um sequester or the information they've already gathered it
Speaker 1: out to that witness to make sure that they have
Speaker 1: a file that doesn't show that they actually use information
Speaker 1: derived from the congressional testimony and gives the A G
Speaker 1: and Department an opportunity to object if they think that
Speaker 1: the congressional effort might complicate the prosecution or frustrated Steve,
Speaker 1: it sounds as though the congressional investigators aren't inclined to
Speaker 1: grant the immunity right now. But what goes into that
Speaker 1: calculation for lawmakers and their investigators, Why would they give
Speaker 1: somebody like Michael Flynn immunity? Well, I guess, I mean
Speaker 1: the real question is whether they think that there are
Speaker 1: material pieces of evidence and information that someone like Michael
Speaker 1: Flynn has they can provide to the committee that he'd
Speaker 1: be disinclined to provide but for the immunity. So, you know,
Speaker 1: this is part of why oftentimes when these kinds of
Speaker 1: issues come up, the first time you hear about it
Speaker 1: is not in a tweet from the witness's lawyer. Rather
Speaker 1: it's in, you know, after the committee has done some legwork,
Speaker 1: after there's been some kind of propersition, where the committee
Speaker 1: has a sense of exactly what kind of information they're
Speaker 1: going to get in exchange for the immunity. That's the calculus.
Speaker 1: And I think, you know, it's interesting here that there's
Speaker 1: no suggestment that's happened, and that what's really going on
Speaker 1: is a public relations campaign where Flynn lawyer is saying,
Speaker 1: you know, he should get immunity, and no one on
Speaker 1: the hill seems to be really you know, publicly talking
Speaker 1: about it. Yeah, it does seem a little odd Andrew
Speaker 1: that you know that a lawyer would go public with
Speaker 1: a request like this when you when you talk about
Speaker 1: doing something like a proffer, as Steve mentioned, what what
Speaker 1: kind of discussions would usually happen between say a congressional
Speaker 1: committee and somebody's lawyer before a decision got made. Well,
Speaker 1: I think the committee would want to satisfy itself that
Speaker 1: he has something that's juicy enough or important enough to
Speaker 1: the committee's work that they would be worth sacrificing the
Speaker 1: potential exposure he'd have for any crimes that were committed.
Speaker 1: So they'd really want to know something about what do
Speaker 1: you have a story to tell? And you know his
Speaker 1: attorney's statement, there's been a lot made of the fact
Speaker 1: that he said General Wind certainly has a story to tell,
Speaker 1: and I think and you know that's that was sort
Speaker 1: of pregnant with that idea that there might be something
Speaker 1: juicy there. However, I think, you know the fact that
Speaker 1: he went public with this is not the kind of
Speaker 1: the way you woo a committee into actually granting an
Speaker 1: immunity um border. So I think, you know, there's some
Speaker 1: pretty good speculation here that they might not have that
Speaker 1: much to offer, They're not offering that much to the committee,
Speaker 1: and that this is kind of a public relations campaign, Steve,
Speaker 1: as we've been discussing, this is immunity just for what
Speaker 1: he might say to the committee, Not immunity from anything
Speaker 1: having to do with the uh the issue of contact
Speaker 1: with Russia. But as a practical matter, if somebody like
Speaker 1: Mike Flynn were to get immunity, how difficult would it
Speaker 1: make Would that make it to prosecute him for any
Speaker 1: crime related to this investigation? Yeah, I mean it would
Speaker 1: make it pretty hard. You know, not formally because you know,
Speaker 1: depending on how the immunity is provided by the relevant
Speaker 1: congressional committees, there are ways to do it that wouldn't
Speaker 1: necessary early applied to a criminal investigation. But you know,
Speaker 1: folks may remember that, you know, the Oliver North indictment
Speaker 1: after Iron Contra blew up largely because there were questions
Speaker 1: about the scope of the immunity he had had been
Speaker 1: provided before testifying before Congress. There were concerns about whether
Speaker 1: there were Fife Amendment implications for not you know, giving
Speaker 1: him a similar treatment in a criminal prosecution. So, you know,
Speaker 1: I think part of the complexity here is not just
Speaker 1: the politics on Capitol Hill, but also the Andy was
Speaker 1: talking about. I mean, the dynamic you're going to necessarily
Speaker 1: have between the congressional investigators and the Justice Department. Um,
Speaker 1: you know, at least some of whom might very well
Speaker 1: want a pretty substantial bite at this apple if it
Speaker 1: turns out that, you know, Michael Flynn can really be
Speaker 1: tied to some of the more serious criminal allegations that
Speaker 1: are being bandied about Andrew. One of the things that
Speaker 1: has been different about this one, it seems, is that
Speaker 1: the President of the United States has tweeted that he
Speaker 1: supports Mr. Flynn's request for immunity because this is, to paraphrase,
Speaker 1: a witch hunt, uh, this investigation in his view. How
Speaker 1: unusual is it for a president to do something like that. Well,
Speaker 1: first of all, it's totally unprecedented. And the second point
Speaker 1: is it's problematic because a President Trump shouldn't know what
Speaker 1: the FBI does or does not have in terms of
Speaker 1: information within its investigation on Mr. Flynn, So he wouldn't
Speaker 1: be in a position to know whether it's actually which
Speaker 1: one or not absent some sort of improper contact with
Speaker 1: the Justice Department. So that's one problem. The second problem
Speaker 1: with that tweet is the fact that it creates the
Speaker 1: perception that he might be publicly trying to signal to
Speaker 1: Flynn to try and seek community or some in some
Speaker 1: other way interfere with the natural processes of the Justice
Speaker 1: Department and the FBI as they go forward with a
Speaker 1: very serious counterintelligence to counter intelligence investigation. Steve, you only
Speaker 1: have about a minute left, but I wanted to ask
Speaker 1: you about Richard Painter and Norm Eisen had had a
Speaker 1: column in the New York Times where they said, we
Speaker 1: gotta go ahead and give Michael Flynn immunity because this
Speaker 1: is so important that we need to get to the
Speaker 1: bottom of what happened as quickly as possible. What do
Speaker 1: you think about that? You know, I think that's I
Speaker 1: think that's you know, good for headlines. I think it's
Speaker 1: bad for policy. I mean, there are lots of reasons why,
Speaker 1: you know, even if it's not good press, we really
Speaker 1: want this investigation to go methodically and slowly and one
Speaker 1: step at a time. Um and before we have a
Speaker 1: better sense or at least before congressional investigators have a
Speaker 1: better sense of just what Michael Flynn knows and just
Speaker 1: what he did, you know to give him immunity a
Speaker 1: sort of a knee jerk reaction. Um. I think it's
Speaker 1: going to be a very myopic move um, and could
Speaker 1: actually handstring the investigation down the road as opposed to
Speaker 1: opening the doors to you know, getting there faster, as
Speaker 1: as Eisman Painter Is suggested. Our thanks to Steve Laddock
Speaker 1: of the University of Texas School of Law and Andrew Wright,
Speaker 1: professor at Savannah Law School. That's it for this edition
Speaker 1: of Bloomberg Law. We'll be back tomorrow thanks to our
Speaker 1: technical director Charlie Valmer and our producer David Suerman. You
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