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What Is Immunity From Prosecution?

By Christopher Coble, Esq. | Last updated on

The word "immunity" gets tossed around quite a bit, from smoothies designed to keep you from getting sick to a supposed Get Out of Jail Free card for foreign diplomats. It's being tossed around today because President Donald Trump's former national security advisor Michael Flynn has told Congress he is willing to testify regarding the Trump campaign's alleged ties to Russia. Flynn made the offer through his attorney, on the condition that he be granted immunity from future prosecution in exchange.

So what is immunity from prosecution? And how might it work in the case of Mr. Flynn?

Ordinary Immunity

An ordinary case of prosecutorial immunity involves prosecutors willing to allow a little fish to go free to put a bigger fish on the hook. For instance, a low-level drug dealer might be offered immunity in exchange for testimony that could convict a high-level trafficker. Essentially, prosecutors must see some greater value in granting an individual immunity -- in a crime fighting or overall justice sense -- than prosecuting that individual.

In most criminal cases, the biggest question regarding prosecutorial immunity is one of scope -- exactly how much immunity is the person being granted, for what offenses, and for how long? States generally apply one of two approaches to immunity:

  1. Use Immunity: Prosecutors agree not to use the person's testimony, or evidence gleaned from that testimony, against the person; using independently obtained evidence to prosecute the person, however, is fair game; and
  2. Transactional Immunity: Prosecutors agree to not prosecute the person for any offenses related to his or her testimony.

Both types of immunity are generally limited to the crimes involved. If you flip on a drug kingpin, you're probably not going to get immunity for crimes unrelated to narcotics trafficking.

Congressional Immunity

Prosecutorial immunity in Flynn's case may work a little differently. Congressional committees have the power to grant testimonial immunity to witnesses, but must follow a more formal process. Grants of immunity require a two-thirds majority vote by members of the committee, and the committee must provide notice to the Justice Department or the Office of Independent Counsel. The FBI or DOJ can't block a congressional immunity deal outright, but Congress often avoids jeopardizing federal criminal investigations.

Flynn's attorney, Robert Kelner, released a statement, saying, "General Flynn certainly has a story to tell, and he very much wants to tell it, should circumstances permit." But a congressional official who confirmed Flynn's offer also said investigators have decided to gather more evidence before taking him up on the deal. While Flynn has expressed his own thoughts on people who get immunity in exchange for testimony, hesitance from congressional investigators in accepting his offer could be construed as their belief that he doesn't have that much to say, that they may not need his testimony to get what they want, or that they want to make sure he can be prosecuted as well.

What is clear is that immunity is always a good deal, if you can get it. What remains to be seen is whether Flynn will be granted immunity, and what he might say if he is.

UPDATE: NBC is reporting that the Senate Intelligence Committee declined Flynn's request for immunity in exchange for his testimony, calling the offer "wildly preliminary" and saying that immunity was "not on the table" at the moment. Sources also say Flynn shopped his testimony to the Justice Department, but no word yet on whether it's been accepted.

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