Understanding Flynn’s Right to Request Immunity

When former national security advisor Michael Flynn asked for immunity in exchange for testimony related to the investigation into President Trump’s possible ties to Russia, the request reverberated across the United States. The question on the minds of many was what information Michael Flynn might have that warranted such a request.


After all, it was Flynn himself who, months earlier, made the statement that those who ask for immunity almost certainly have something to hide. While the media’s spin on the immunity request is that Flynn is looking for protection out of a real fear of prosecution, in fact, Flynn’s request could be a smart play. Consider the two types of immunity available to Michael Flynn—or anyone else:

Two Types of Immunity

There are basically two categories of immunity in the U.S. Transactional immunity is the broadest of the two, offering complete protection from future prosecution for any issue mentioned in the testimony. Transactional immunity is often called “blanket” immunity. While transactional immunity certainly offers the most protection for the witness, it will not stop criminal prosecution for illegal activities unrelated to issues discussed in the immunized testimony.

The second type of immunity is known as “use and derivative use” immunity, and is the more common type of immunity. Use and derivative use immunity is much narrower than transactional immunity, however it does prevent the prosecutor from using the witness’s statements against him or her, basically providing about the same amount of protection as not testifying at all. Use and derivative use immunity will not stop prosecutors from gathering more evidence to later use against the witness. Michael Flynn would almost certainly ask for transactional, or blanket immunity in his current situation.

What Would an Indictment Against Flynn Entail?

If Michael Flynn were to be indicted, who would do so, and what would the indictment entail?

It appears there are three distinct matters in which Flynn may have some level of criminal exposure:

  • Flynn could potentially be charged with lying to the FBI regarding his communications with Russia’s ambassador to the U.S.;
  • Flynn could have some criminal exposure under the Foreign Agents Registration Act for his dealings with the Turkish government, and
  • Flynn may not have truthfully disclosed on his SF86 security clearance form that he received payments in 2015 from entities related to the Russian government.

Issues Related to Flynn’s Request for Immunity

The FBI, headed by Director James Comey, is only allowed to recommend criminal charges, however the actual decision is left up to the Department of Justice prosecutors. Attorney General, Jeff Sessions, however, has recused himself “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States,” although his recusal may not legitimately cover any crimes Michael Flynn might be charged with. If it turns out that Jeff Sessions is the decision maker on whether Flynn is criminally charged, many believe Flynn will get a pass. If Sessions takes a pass, then the decision as to whether Flynn will be indicted will be left to the Deputy Attorney General.

Further, even if the Department of Justice were to indict Michael Flynn, President Trump could step in with a pardon (under the President’s Article II constitutional power which allows a pardon to come before charges have even been filed) on Flynn’s behalf. Those who remember the Nixon era will remember that President Gerald Ford issued this type of pre-prosecution “blanket” pardon to former President, Richard Nixon. Obviously, if President Trump issued such a blanket pardon for Flynn, there could potentially be outcries of a cover-up, although the situation becomes even muddier considering President Trump publicly praised Flynn—after firing him.

Governmental Immunity in the State of Mississippi

Historically, the state and its agencies were protected from tort liability (the breach of a legal duty, leading to a lawsuit), under the sovereign immunity doctrine. When the Mississippi Tort Claims Act was adopted, the state waived that immunity for at least some tort claims. Now, any claim for damages regarding acts or omissions of a governmental entity or its employees is brought under the MTCA, and Mississippi governmental entities no longer enjoy blanket immunity.

In Mississippi criminal and civil cases, the prosecution has the right to grant immunity to a person who gives pertinent testimony—usually that person will be required to give information which will allow the police to make several arrests in exchange for prosecutorial immunity. As far as Michael Flynn goes, attorney Mark Zaid, who specializes in government whistleblower cases calls Flynn’s request for immunity “fairly standard,” saying “I can’t imagine if I were his lawyer that I wouldn’t ask for immunity regardless of whether he did anything illegal or not.”

Contact Our Jackson Criminal Defense Lawyers

If you are arrested and charged with a crime in Jackson, Hattiesburg, Meridian, or anywhere in the State of Mississippi, you need to fight for your rights and protect your freedom. The best way to do this is to hire an experienced Jackson criminal defense attorney immediately.

At Coxwell & Associates, PLLC, our attorneys believe in fighting aggressively for our clients and we can build a defense that is designed to expose the holes in the prosecution’s case against you. Contact Coxwell & Associates today at (601) 265-7766.

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

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