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The President, The Lt. General and the The Justice Department

This is going to be a race to someone’s finish. On the one hand, I believe that Lt. Gen. Flynn (“Flynn”) is going to shop his information to the Justice Department in exchange for absolution (immunity). At the same time, in my humble opinion, that same Justice Department (where the Attorney General has recused himself and the then acting Deputy Attorney General was fired) is going to be fielding a request from the President to invoke Executive Privilege to essentially tape Lt. Gen Flynn’s mouth shut and bind his hands from turning over documents. Load up on the popcorn. This is going to get interesting.

Here is how I see the tug of war will going:

On the one hand, Flynn obviously believes he has a genuine concern that he is a target of a criminal investigation. While the Fifth Amendment prevents the government from compelling him in any criminal case to be a witness against himself, once he invokes the privilege (“Takes 5”), it’s pretty much understood he is screwed even though his silence can’t be used against him

So what does Flynn do? He shops his information to the Justice Department hoping that the government will grant him immunity from prosecution in exchange for his cooperation. There are two types of immunity; Informal Immunity and Formal Immunity. Informal immunity, which is also known as “pocket immunity” or “letter immunity,” is immunity given by the government under an agreement. Principles of contract law apply in determining the scope of informal immunity. Formal immunity, which is also known as Statutory Immunity, empowers the Justice Department to seek a court order to compel testimony of a witness appearing in court proceedings or before the grand jury. Immunity can include immunity in connection with producing records.

Now, should it come to pass that Flynn’s shopping cart includes the President and/or The White House, I believe the President will try to bind and gag Flynn through invoking Executive Privilege, which would allow the President and other high officials of the executive branch to keep certain communications private if disclosing those communications would disrupt the functions or decision-making processes of the executive branch.

The subplot here will be whether this privilege extends to information germane to a criminal investigation. And the sub-subplot is that this all goes to the Justice Department – the same Justice Department that has seen its Attorney General recuse himself from this investigation and which saw its then Acting Deputy Attorney General fired for acting out against the President and whose testimony on this was cancelled at the last moment.

BTW the butter from Rennes, France would go particularly well with the popcorn. Washed down with a Cab from Raymond Vineyards in Napa.