WHEN YOU COME TO COURT, GENERAL FLYNN, BRING A TOOTHBRUSH

“IF I DID A TENTH OF WHAT SHE DID, I’D BE IN JAIL TODAY. LOCK HER UP! LOCK HER UP! . . .”

Moving Silhouettes, Oil on Panel, 24" x 32", Richard J Van Wagoner, 1988, Courtesy Helen Bero-Van Wagoner and Richard A. Van Wagoner**

[The artwork in this post comes from a period when my father focused his art in American Urban Realism.]

This post is repackaged from when Flynn generously offered to share the story he so wants to tell — in exchange, of course, for a pass on criminal prosecution. With recent developments, the prospect of immunity from prosecution in exchange for cooperation once again takes center stage. The list of potential snitches is expanding. Flynn’s a large target so no one will listen unless there is someone bigger they can’t get without him. Unfortunately for potential snitches Trump seems to be doing enough on his own to obviate their need.

Those who work within the White House limelight and its penumbra must be loyal, willing to take the bullet for POTUS in the interest of protecting him from any form of exposure to corruption or obstruction. This POTUS apparently thinks preserving his own deniability comes from making horribly incriminating statements into every microphone someone sticks in his face. He has also shown one can commit crimes, including obstruct justice, in 140 or fewer characters. The frequent invocation of “Executive Privilege” and “National Security” historically presents significant barriers to investigating and discovering presidential monkey business. The mixture of this man’s insecurities and vastly inflated impressions of his own brilliance, skill, command of the English Language and grandiosity nearly eliminate those barriers, further exposing his mind-bending pathology and what is already resulting in dire consequences here and around the world.

Dusk, Oil on Panel, 9" x 15", Richard J Van Wagoner, Circa 1990, Courtesy Helen Bero-Van Wagoner and Richard A. Van Wagoner**

Given Trump’s inability to reciprocate, my guess is the loyalty of others will continue to wain. If Trump does not convict himself, his utter lack of consistency and credibility on any subject and dearth of ideology beyond his insatiable need to bolster a fragile ego may well result in the rats scattering.

The administration’s explanation of the 17 days between Ms. Yates’ disclosure to the White House and Flynn’s departure — Flynn was dismissed not because he did anything wrong but because of those illegal leaks — could well be just another manifestation of Trump’s malignant narcissism: Trump can do no wrong and has nothing to apologize for. But emerging from Ms. Yates’ recent testimony is the very strong inference that Trump had little choice but to keep him on — until he no longer could. Wonder why that is.

If Flynn is granted immunity, which will depend on many of the considerations below, he may even be able to pull off an Oliver North, but I suspect any truly independent special prosecutor (and the House and Senate . . . ok maybe not the House but the Senate) will have learned history’s lesson.

Untitled, Oil on Panel, 20" x 35", Richard J Van Wagoner, Circa 2000, Courtesy Van Wagoner Family Trust**

An Immune System of the Body Politic

The Fifth and Fourteenth Amendments to the United States Constitution suggest governments in the United States — federal, state, local — are not despotic. A truism, at best. Conceptually, a person is under no compulsion to participate in his own prosecution through disclosure or confession, but courts have narrowly construed those protections. Courts sanction almost every means creative investigators can imagine to trick people into “voluntarily waiving” their Fifth Amendment rights, short of beating it out of them. False confessions come in at an alarmingly high rate.

If they can’t get the information the old fashioned way, prosecutors sometimes conclude information is of such importance they will barter for it. Other times the government chooses to compel disclosure through grants of immunity even when its repository has no interest in sharing: if the government gives immunity from prosecution, the recipient can be compelled to disclose but might prefer to sit in jail rather than suffer the consequences of being considered a snitch. Being a snitch can be bad and being dead can be worse.

Untitled, Oil on Panel, 18" x 24", Richard J Van Wagoner, 1995, Courtesy Helen Bero-Van Wagoner and Richard A. Van Wagoner**

A potential subject or target of a criminal investigation, say Flynn or Page or Manafort or Sessions or Kushner, who thinks he has something of value to exchange for immunity from prosecution, might make the first offer. Discussions like this frequently occur when the government wants to hook a big fish and, if it means landing that yuge one, catching and releasing smaller ones.

Immunity comes in different sizes. Participants want as much as possible in exchange for as little as possible — the epitome of a free market, what a willing buyer will pay and a willing seller will accept — and contract law, with the threat of losing one’s liberty interest overshadowing the process. The government wants valuable, admissible evidence with a narrowly-confined grant of immunity. The person seeking immunity wants a “get out of jail free card” allowing him to disclose everything he’s ever said, stolen, damaged, assaulted, killed, buried, smoked, snorted or f*&$ed.

Untitled, Watercolor, 28" x 40", Richard J Van Wagoner, Circa 2005, Courtesy Van Wagoner Family Trust**

No one should be too quick to let any of the potential snitches off the hook. Considerations for granting immunity may include:

• What is the information and what’s its value to the government? The government will not “buy a pig in a poke,” a comment I hear virtually every time I engage a prosecutor in an immunity discussion. The government usually requires a “proffer” from the lawyer, that is, a fairly detailed description of what the lawyer believes the client has to say so the government knows whether it would receive anything of value in exchange for a grant of immunity. The proffer will be given in the context of settlement discussions, which courts encourage, so the Rules of Evidence generally prohibit its use in court. Moreover, the lawyer can fashion the proffer in such a way as to otherwise prevent its use as evidence. It’s for discussion purposes only. It helps when the prosecutor and defense attorney trust each other.

• Does the person seeking immunity have information on someone higher in the food chain than himself? An already disgraced former General is a compelling target, but in context the DOJ, Senate or House . . . ok maybe not the House, might consider a campaign manager or the candidate himself who, say, collaborated with a cold war enemy to influence the election, as more compelling.

• Does the person seeking immunity have information about crimes against the United States committed by others that are more serious than his own crimes?

• Does the government already have the information that is being offered, making a grant of immunity an exchange of something for nothing?

• If the government already has the information being offered, is the government’s possession in a form that can be used in court: does it satisfy the Rules of Evidence?

• Is the person seeking immunity credible, believable, if he must be called as a witness? Clearly, the fact that someone has bartered for his freedom in exchange for becoming a government witness makes him and his credibility easy targets for impeachment on cross examination.

• Is the information credible, believable, verifiable through some independent source?

• How broad should the grant of immunity be in order to obtain the information?

Untitled, Oil on Panel, 23" x 35", Richard J Van Wagoner, Circa 1995, Courtesy Van Wagoner Family Trust**

Oliver North’s Cautionary Tale

My memory of Phil Hartman doing his Ronald Reagan on SNL during the Iran-Contra scandal came into focus when I heard Flynn’s conditional offer to share what he knows with the Senate, House and FBI. Responding to a Nora Dunn reporter’s question, “Which is worse, knowing or not knowing?” about the scandal, Hartman’s Reagan said:

Well, all I can say is, . . . I . . . didn’t . . . know. And well we’re trying to find out what happened because none of us know. I hope I’ve answered your questions as best I could given the very little that I know.

https://www.nbc.com/saturday-night-live/video/president-reagan-mastermind/n9509?snl=1

The Iran-Contra scandal tells a cautionary tale. Oliver North, an integral player in the Reagan-era political scandal known as the Iran-Contra Afair, was a decorated marine and Vietnam War veteran who served as deputy director for political-military affairs for the National Security Council from 1981 to 1986. During his time at the NSC, he was promoted to lieutenant colonel but resigned his commission in 1990.

One scandal in which North was instrumental during his tenure at the NSC concerned the diversion of profits from the sale of weapons to Iran to Contra rebels in Nicaragua. While North thought the diversion was a “neat idea,” Congress which had passed the Boland Amendment making it illegal, didn’t. Congress and the Department of Justice also took a dim view of North’s perjury before congress and his destruction of evidence. As a recent law school graduate, I listened carefully to the testimony of his secretary Fawn Hall who had secreted documents in her panties for later shredding. Ok . . . maybe the law grad thing had nothing to do with it.

The following is from a decision by the United States Court of Appeals for the District of Columbia. It explains one set of potential problems with the Flynn proposal:

Congress established two committees charged with investigating the sales of arms to Iran, the diversion of proceeds therefrom to rebels (or “Contras”) fighting in Nicaragua, and the attempted cover-up of these activities (controversial events popularly known as “the Iran/Contra Affair”). In July of 1987, Lieutenant Colonel Oliver L. North, a former member of the National Security Council (“NSC”) staff, testified before the Iran/Contra congressional committees. North asserted his Fifth Amendment right not to testify before the committees, but the government compelled his testimony by a grant of use immunity pursuant to 18 U.S.C. § 6002. North testified for six days. [I’m guessing this was worked out in advance between his lawyers and lawyers for the congressional committees: he would take the Fifth Amendment and Congress would then grant him use immunity, which is defined below.] His testimony was carried live on national television and radio, replayed on news shows, and analyzed in the public media.

[18 U.S.C. § 6002: Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to — 
(1) a court or grand jury of the United States, 
(2) an agency of the United States, or 
(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House, 
and the person presiding over the proceeding communicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.]

Untitled, Pencil on Paper, 18" x 37", Richard J Van Wagoner, Circa 1995, Courtesy Van Wagoner Family Trust**

Contemporaneously with the congressional investigation, and pursuant to the Independent Counsel statute, . . . the Special Division of this Court . . . appointed Lawrence E. Walsh as Independent Counsel (“IC”) and charged him with the investigation and prosecution of any criminal wrongdoing by government officials in the Iran/Contra events. As a result of the efforts of the IC, North was indicted and tried on twelve counts arising from his role in the Iran/Contra Affair. After extensive pretrial proceedings and a twelve-week trial, North was convicted in May of 1989 on three counts: aiding and abetting an endeavor to obstruct Congress . . . (“Count 6”); destroying, altering, or removing official NSC documents . . . (“Count 9”); and accepting an illegal gratuity, consisting of a security system for his home . . . (“Count 10”). North now appeals his convictions on these counts.

North argues that his Fifth Amendment right against self-incrimination was violated, asserting that the District Court failed to require the IC to establish independent sources for the testimony of witnesses before the grand jury and at trial and to demonstrate that witnesses did not in any way use North’s compelled testimony. North further argues that his Fifth Amendment right was violated by the District Court’s failure to determine whether or not the IC made “nonevidentiary” use of the immunized testimony.

North’s argument depends on the long-recognized principle that a predicate to liberal constitutional government is the freedom of a citizen from government compulsion to testify against himself:

And any compulsory discovery by extorting the party’s oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.

The District Court erred in failing to hold a full hearing . . . to ensure that the IC made no use of North’s immunized congressional testimony. North’s convictions on all three counts are therefore vacated and remanded to the District Court for a . . . proceeding consistent with this opinion.

*My brother the fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to lastamendment.com

**My daughter Angela Moore, a professional photographer, photographed nearly 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in lastamendment.com are hers