First published on investigatingtrump.com
Regarding ex-National Security Advisor Michael Flynn's recent request for immunity, there's a lesson to be learned from a short-lived Mafia murder trial in Brooklyn nearly a decade ago.
On March 30th, 2006 R. Lindley DeVecchio, a celebrated FBI Supervisory Special Agent (SSA) known in the Bureau’s New York Office (NYO) as “Mr. Organized Crime” was indicted by the Brooklyn District Attorney on four counts of second-degree murder conspiracy.
Moments after D.A. Charles Hynes called DeVecchio’s alleged “unholy alliance” with Colombo crime family captain Greg “The Grim Reaper” Scarpa, "the most stunning example of official corruption" he had ever seen, an Assistant D.A. then described my second HarperCollins book, “Cover Up” as a "springboard to understand... what direction the investigation should go (in)."
Flash forward to the summer of 2007, just months before the trial, when I was subpoenaed by both the prosecution and the DeVecchio defense. They wanted me to testify and give up my confidential sources at a pre-trial proceeding known famously among criminal lawyers as a “Kastigar Hearing.”
Named for the landmark U.S. Supreme Court case Kastigar v. U.S. the hearing was centered around the legal principal that if a defendant in a criminal case has been given prior immunity, then prosecutors seeking to lock him up are required to build a “firewall” between his immunized testimony and any new investigation leading to an indictment.
DeVecchio’s lawyers were asserting “The Oliver North Defense" named for the Lt. Colonel at the heart of the Reagan White House’s “arms for hostage” conspiracy. Once North cut an immunity deal with the Iran-Contra Select Committee, it had the effect of walling him off from criminal jeopardy in any future prosecution.
In fact, Lawrence. E. Walsh the independent counsel who spent years seeking convictions in the scandal, titled his 1997 memoir, “Firewall.” Because of the Kastigar doctrine his guilty verdicts for North were later overturned on appeal and Ollie walked.
That historical precedent is now shaping the dynamic of “Russia-gate;” the question of whether any members of the Trump campaign, transition or administration colluded with Moscow as it hacked the 2016 election in favor of “45;” a conclusion reached by 17 U.S. intelligence agencies.
THE “KASTIGAR VIRUS”
Back in 2007 Lin DeVecchio also found himself in the clear; not from a Kasitgar “get-out-of-jail-free” card, but the Brooklyn D.A.’s botched prosecution of the murder case which included the disputed testimony of Scarpa Sr.’s common-law wife who’d been a key prosecution witness.
As to my own part in his Kastigar hearing, the able lawyers for HarperCollins who represented me filed a motion to quash the subpoenas on the grounds that I was protected from having to give up my sources under the New York Shield Law.
In prior pleadings DeVecchio’s lawyers had argued that the D.A.’s investigation “had become infected with the Kastigar virus… contracted through Peter Lance.”
I finally took the stand under threat of contempt and was able to protect my sources as I testified about my limited references in “Cover Up” to DeVecchio’s immunized testimony in the FBI’s OPR internal affairs investigation of the Scarpa scandal.
The late Judge Gustin Reichbach who presided, initially decided that he’d wait to rule on the Kastigar issue until the end of trial and once the charges were dropped, the firewall issue became moot. Still, in his final order, he described the FBI’s relationship with Scarpa Sr., a Top Echelon Criminal Informant who had “stopped counting” after fifty murders, as a “deal with the devil,” and I used the phrase for the title of my 2013 book on the case.
Now having observed the Kastigar doctine up close, I’m certain that a number of other Trump surrogates including Paul Manafort, Carter Page, & Roger Stone will be climbing over each other to strike a deal with one of the committees. The Bureau, I'm sure, will be a dead end.
NIXON, AGNEW & PENCE
That’s because the Iran-Contra lesson has chastened federal prosecutors and with the media heat currently on this scandal it would have to be a sub-zero day in hell before Director James Comey agreed to protect Mike Flynn or another of the other key witnesses unless, in a proffer session, they had direct evidence implicating the President himself in the felonies of conspiracy, treason or obstruction of justice – each an impeachable offense with years of prison time attached.
If that happens and VP Mike Pence emulates Gerald Ford’s pardon of Richard Nixon, Trump will never see the inside of a cell. But before the VP himself gets overconfident, he should remember the fate of Nixon’s own veep Spiro Agnew, who resigned after an indictment for bribe-taking as Governor of Maryland.
No such scandal has touched the icy white-haired ex-Indiana Governor but it is curious that Pence’s donated papers from the governership and his 12 years in the House have been sealed.
Further, Pence himself could face liability if the Russia scandal creeps into his side of the West Wing. After all, he claims to have been blindsided by Flynn on his conversations with Ambassador Sergey Kislyak, Russia’s top U.S. spy. But it took 18 days between Acting A.G. Sally Yates’ warning that Flynn might be compromised to his ultimate departure from the White House on February 13th.
What did Pence really know about Flynn’s communiqués with the Russians during that period? Why did he tell FOXNEWS in March that he was clueless to Flynn’s covert work as a paid foreign agent of Turkey when he’d been warned about it by Rep. Elijah Cummings (D-MD) back in November? Mike Pence’s state of awareness on all that could now impact his own longevity.
QUEEN FOR A DAY
A proffer session, dubbed "Queen for a day" by the Feds, is a meeting between prosecutors & potential witnesses in which they’re asked to show their cards -- offer precise details on what they would testify to under oath in a criminal proceeding -- before any offer of limited-use immunity can be made.
Considering the level of this investigation the Attorney General would typically sign off on a deal like that himself. But given Jeff Sessions' tenure on the Trump transition and his recent recusal from Russia-campaign matters, he shouldn't be able to influence that decision.
Still, it’s conceivable that the ex-Alabama Senator could also be in jeopardy. After all, he had two meetings with Kislyak that he failed to initially disclose during his confirmation. He was under oath at the time and perjury is a crime. Sessions lied during questioning by Sen. Al Franken (D-MN) insisting, “I did not have communications with the Russians.”
Earlier, he was asked in writing by Sen. Patrick Leahy (D-VT) “Have you been in contact with anyone connected to any part of the Russian government about the 2016 election…” and the future Attorney General replied “No.”
ENDORSING A FLYNN IMMUNITY DEAL BY TWEET
In a statement he must now regret, Flynn told Chuck Todd on Meet The Press last September that, “when you are given immunity that means you have probably committed a crime.”
So, Thursday, in detailing his immunity request, Flynn’s lawyer Robert Kelner tried to spin the offer away from his client’s potential guilt by asserting that “No reasonable person who has the advice of counsel, would submit to questioning in such a highly politicized, witch hunt environment without assurances against unfair prosecution.”
The President used that same McCarthy-like analogy in a Tweet early Friday endorsing Flynn’s latest strategy: “Mike Flynn should ask for immunity in that this is a witch hunt (excuse for big election loss), by media & Dems, of historic proportion!”
It felt like a ploy by Trump to seem unfazed by Flynn’s immunity bid. But maybe he should be worried. As Katie Zavadski reports in The Daily Beast, Kelner, who’s a partner at the big D.C. law firm of Covington & Burling, was a staunch NeverTrumper. So it begs the question: why would Flynn hire a lawyer like that if he really wanted to fall on his sword for the President? My guess is that Flynn is now as angry at Trump as he was at Hillary Clinton when he led cheers to "lock her up" at the GOP convention.
IRONY ON TOP OF IRONY
It was Flynn protégé Ezra Cohen-Watnick who was outed by the NYT on Thursday as one of at least three White House staffers suspected of facilitating last week’s hair brained scheme to give the President cover for his March 4th anti-Obama Twitter meltdown.
That was the plot in which House Intelligence Chairman Devin Nunes made a series of trips between The Capitol and The White House bracketed by press conferences where he claimed he'd discovered fresh intel on Trump and his campaign aides collected by the Obama administration during the transition.
As Politico reported Flynn’s successor, H.R. McMaster, wanted to sideline Cohen-Watnick, who allegedly “fell out of favor with some at the CIA,” but the 30-year-old’s job on the National Security Council was saved by Steve Bannon and Trump son-in-law Jared Kushner.
Now, apart from any high crimes or misdemeanors Bannon might be responsible for, Kushner himself could be vulnerable in the FBI Russian-influence probe.
Why? because he and Flynn met secretly with the Russian Ambassador in Trump Tower back in December and Kushner had another secret confab with Sergey N. Gorkov, an FSB-trained Putin confident who's an official of a Russian bank currently under sanctions.
Senate investigators now want to question Jared about all of that.
Add to the mix, the extraordinary testimony at Thursday’s Senate Intelligence hearing from former FBI agent Clint Watts. He told the panel that Russian “weaponized” disinformation hacks known as “active measures” had influenced President Trump himself as recently as October 11th when he quoted a fake news story from the Kremlin’s propaganda outlet Sputnik News.
Testimony at that Senate hearing also revealed publicly, for the first time, that the Russian's also intervened to impact the GOP primary process in favor of Donald Trump. One of the targets was Florida Senator Marco Rubio, whom the Senators heard, was the victim of active measures as recently as this week.
A HEAD SPINNING GAME OF CAT’S CRADLE
There are now at least three questions regarding Russian intervention in U.S. electoral politics that investigators are digging into:
1) Whether Donald Trump was merely what Moscow Centre would call a “polezniye duraki” or a “useful fool,” influenced in his decision-making by their propaganda?
2) Whether Russian interests colluded with Trump campaign surrogates, transition team members or administration officials to achieve quid pro quos, like the lifting of costly sanctions imposed by Barack Obama after Putin’s invasion and annexation of Crimea?
3) Finally, whether the Trump administration is now obstructing justice to thwart efforts by the FBI and congressional investigators to answer those questions.
If The Times reporting on Cohen-Watnick and ex-House Intel Committee lawyer Michael Ellis, is accurate, we already know the answer to Question No. 3.
The net-net: Team Trump cooked up a plot to “uncover” the alleged “intel,” slip it to Nunes, then induced him to return to the WH to “reveal” it as sourced by “whistleblowers” in an audacious move to vindicate the President for his baseless "wiretapping" accusations.
That run-on sentence is a fair description of the cat’s cradle of obstruction that was woven last week at 1600 Pennsylvania Avenue. Remember, “obstruction of justice” was the principal crime that led a House Committee to approve three articles of impeachment against Richard Nixon in 1974 that led to his resignation.
And As Lawrence O'Donnell has been pointing out, night after night on 'The Last Word," Nunes read House Speaker Paul Ryan into that plot before he "briefed" the President. That could make the Wisconsin Republican, who's third in the line of succession for President, himself a co-conspirator.
Finally, if you want to stand irony on its head, another revelation in Thursday's Senate hearing was that in the last few days, along with Marco Rubio, Paul Ryan himself was the target of Russian social media attacks seeking to discredit him.
Imagine if Trump, Pence and Ryan all go down over this. Our next POTUS would be none other than President Pro Tempore of The Senate, Orrin Hatch, an eighty-three year old Republican from Utah. And if he proved too old to serve, guess who’d be calling the shots? Former Exxon/Mobile CEO and recipient of The Russian Order of Friendship, Rex Tillerson.
It could turn out that they remade “The Manchurian Candidate” a few years too early. Is Vladimir Putin really that much of a chess player? It’s your call.
.09-ON-THE-RICHTER-SCALE OF SCANDAL
Thursday night on CNN, Matthew Rosenberg, one of the NYT reporters who broke the Cohen-Watnick/Ellis bombshell, noted how the Russia story was moving so quickly that just a few hours after owning what should have been the lead piece of the day, he and his colleagues were now “chasing” the WSJ’s story on Flynn’s immunity offer.
Forget the old 24-hour news cycle, you literally have to be plugged-in around the clock to keep up with the blizzard of Tweets and news alerts in this .09-on-the-Richter-Scale scandal.
THE LIGHT-SPEED OF DISINTEGRATION
In his White House Press conference with German Chancellor Angela Merkel March 17th, the President said that he “probably wouldn’t be here right now,” were it not for Twitter.
Still, the light speed at which he’s jammed what feels like seven months of traditional news into 70 days, could be a sign of how rapidly his White House tenure could unravel if he continues to use Twitter as an instrument of his own demise. Nobody forced him to Tweet, “How low has President Obama gone to tapp (sic) my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!”
Now that bizarre roller-coaster ride of false accusation and cover-up has devolved into Donald Trump’s Nixonian reality. If his paranoia continues, indictments may well follow the subpoenas.
Michael Flynn is a natural target. For 24 days he sat across the Resolute Desk from the President and took notes. From his previously undisclosed speaking fees from Russia Today (RT) the Kremlin propaganda arm which the DNI's January 6th report says “actively collaborated with Wikileaks” to his failure to register as a foreign agent for Turkey while on the Trump transition, Flynn, “certainly has a story to tell,” as his lawyer put it.
The Senate Intel Committee has already rejected Flynn’s offer to strike a deal and the ranking Democrat on the House panel, Adam Schiff, said Friday that Flynn’s immunity bid was too early to be considered, though he characterized it as “a grave and momentous step.”
That’s because with all of the other “compromised” President’s men, Michael Flynn may just be the Jack in the House of Cards. It takes an Ace to trump a King but with so many other members of the court who might be vulnerable to criminal charges, from Manafort to Stone, to Page and yes, even Kushner, James Comey could soon find himself holding a royal flush.