Partner Abbe Lowell made an appearance on “Meet the Press” on MSNBC on March 31, 2017, in which he explained the concept of immunity and discussed the potential implications of granting immunity to former National Security Advisor Michael Flynn. Host Chuck Todd and Abbe focused on past cases of immunity being granted, and applied this analysis to how granting immunity might disrupt the FBI’s ongoing investigation into Flynn’s Russian ties.
Chuck started the interview by referencing Mike Flynn and then getting down to basics, he asked Abbe, “explain why asking for immunity is not an admission of guilt?” To which Abbe responded, “[it] is a device by which the Senate, or it could be an agency, seeks the ability to get somebody’s testimony and their testimony can’t be used against them if the Justice Department then comes after them in a criminal case … It can’t be used, it doesn’t mean that you can’t be prosecuted … It means your words can’t be used against you.”
“[I]f immunity occurs, at any point in the process, what happens then is a mad frenzy by prosecutors, they have to basically box up all the information they have, at that moment, and show somewhere, someplace, sometime that they had it without regard to anything he said after he got immunity,” Abbe stated. “So, what happens is, if you get immunity, the prosecutors who bring your case have a burden of showing that not only they’re not using the words, but nothing derived from your words to be making the case against you,” he added.
“People will remember that that became an issue during Iran-Contra, when the Senate and the House gave immunity to Oliver North. And, therefore, ultimately, it was found that the government couldn’t prove the evidence they had against him was untainted by what he had given in immunity,” Abbe indicated. “[T]he prosecution failed and was reversed because the immunity tainted the case.”
Following that, Abbe returned to the subject of Mike Flynn’s immunity plea. “And, look, I want to say something that people also get lost here … There may not be anything underneath all this. And I believe, as others should, that we believe that presumption of innocence means something,” Abbe continued.
Chuck subsequently asked why the Senate would feel the need to then grant immunity. “[T]here’s only two reasons why either the Congress, or even a prosecutor, would give anybody immunity. Reason one is because they can’t tell the whole story without that person, period … [T]he second reason is related. They need that person to go [after] ... somebody higher or more important … and they think that the person that they will get evidence about is either more culpable or more important to go after than the person who gets immunity.”
Chuck and Abbe then proceeded to analyze the “contours” of immunity, and how other potential investigations that Michael Flynn is facing could get linked. Abbe answered, “So, if I got immunity and I went before Congress and I was asked [about] Russia … and never asked a question about Turkey … [then] immunity on Russia isn’t going to stop the government from finding evidence about Turkey.”
“The lynchpin is that if you’re given immunity for what you say, a prosecutor has to prove not only that he or she didn’t use what you said, but didn’t get any evidence derived from what you said.”
To view the interview, click here.