McCabe seeks immunity, Giuliani seeks diversion

Former deputy director of the FBI Andrew McCabe, sacked two days before he was due to retire, has asked for immunity in order to testify before the Senate Judiciary Committee.

And Rudy Giuliani, supposedly acting as a lawyer for Donald Trump but spending more time on diversionary PR, claims that Trump is being framed. This is playing to public opinion but has no effect on legal implications – and is a risky PR strategy.


“This is a textbook case for granting use immunity,” Michael Bromwich, an attorney for McCabe, wrote Monday in a letter to Republican Sen. Chuck Grassley of Iowa, the chairman of the judiciary panel.

“Mr. McCabe is willing to testify, but because of the criminal referral, he must be afforded suitable legal protection,” Bromwich said. “Accordingly, we hereby request that the Judiciary Committee authorize a grant of use immunity to Mr. McCabe.”

McCabe was fired in March, two days before his retirement, for a “lack of candor” during interviews with the office of the inspector general (OIG) and the FBI’s Office of Professional Responsibility about his role in authorizing FBI contacts with the media about the Clinton probe.

Bromwich decried “a stream of leaks” from the Justice Department about McCabe’s case in his letter to Grassley. He said leaks from the agency revealed the OIG made a criminal referral on McCabe to the U.S. Attorney’s Office in Washington, D.C.

“Even though Mr. McCabe committed no crime, these leaks have forced us to acknowledge the criminal referral,” said Bromwich, who added that he and McCabe “are outraged by these leaks.”

Immunity is warranted because “Mr. McCabe is eager to give such testimony; he has a legitimate fear of criminal prosecution based on the criminal referral that has already been made, the irregularities in the process by which he was terminated, and the improper command influence that continues to be exercised by the President of the United States.”

Bromwich has accused President Donald Trump of improperly targeting McCabe in a series of tweets about political donations that McCabe’s wife received in 2015 from then–Democratic Gov. Terry McAuliffe of Virginia, a longtime Clinton ally.

It’s hard to know what all this means until it plays out.

It’s more obvious what Giuliani is up to. CNBC: Giuliani says Mueller’s team is trying to frame Trump

Former New York Mayor Rudy Giuliani says special counsel Robert Mueller’s team is trying to frame President Donald Trump.

Giuliani, who has been serving as Trump’s lawyer amid the Russiascandal, says Wednesday in Israel that Mueller’s team includes “13 highly partisan Democrats … (who) are trying very very hard to frame him to get him in trouble when he hasn’t done anything wrong.”

Speaking to the Globes capital market conference in Tel Aviv, Giuliani says Trump has the power to pardon himself but won’t because he is innocent.

That looks like a hypothetical diversion.

It was the latest in Giuliani’s often contradictory comments surrounding the probe into Russia’s potential meddling in U.S. elections.

Giuliani has become a lightning rod during his tenure on Trump’s team, drawing the president’s ire for a series of scattershot interviews.

There must be some method in Giuliani’s madcap media mushing but while it may divert from the key issues in the short term it could blow back badly.

The Mueller investigation will plod on. Despite attempts by some to claim a lack of legal details now means something, what ends up in court and what ends up proven will have to be waited for, perhaps for some time yet.

In the meantime the circus will continue. One guaranteed loser is US credibility. The Russians could hardly have hoped for a better election outcome.

US discussion – Flynn and immunity

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The Wall Street Journal raised interest with a story yesterday claiming that now resigned National Security Advisor Mike Flynn approached the FBI and Congress saying he was willing to testify in exchange for immunity.

Just Security comments on this: Flynn’s Public Offer to Testify for Immunity Suggests He May Have Nothing to Say

Although Flynn’s lawyer, Robert Kelner of Covington & Burling, refused to comment for the article, he tweeted out a statement teasing that “General Flynn certainly has a story tell, and he very much wants to tell it, should the circumstances permit.”

As an experienced lawyer, Kelner will know that the Justice Department would never grant immunity for testimony on these terms. Prosecutors would first require that Flynn submit to what’s called a proffer session in which Flynn would agree to tell everything he knows in exchange for the prosecutors agreeing not to use his statement against him.

Only after the prosecutors heard what Flynn could offer in terms of evidence against others, and had an opportunity to assess his credibility, would they be willing to discuss any grants of immunity or a cooperation deal. At a minimum, the prosecutors would require Flynn’s lawyer to make a proffer outlining the information that Flynn could provide.

The fact that Flynn and his lawyer have made his offer publicly suggests that he has nothing good to give the prosecutors (either because he cannot incriminate others or is unwilling to do so). If he had something good, Flynn and his lawyer would approach the prosecutors quietly, go through the proffer process in confidence, and reach a deal.

So they think a deal isn’t going to work.

The Justice Department will tell Congress that a grant of immunity at this stage could compromise its ongoing criminal investigation. Already, statements from the Congressional committees suggest no interest in granting immunity to Flynn.

Flynn’s lawyer appears to have hoped that publicity, pressure or politics might cause one of the Congressional committees to jump. Flynn’s lawyer may have concluded that at a minimum the public offer would help change the atmospherics around his client, which could help him at a future stage. But the ploy feels desperate, indicating that Flynn may not have much to offer.

And the very fact that Flynn’s lawyer is making a play for immunity at this stage suggests that he has some fear that his client faces real criminal exposure.

That could well be the case.

MFAT immunity muck up – are there more?

The MFAT muck up over the Malaysian immunity case raises enough questions of it’s own, up through the ranks of the Ministry to Murray McCully.

Vernon Small touches on possible wider problems in Buck needs to stop for Mfat’s botch-ups.

There are some other questions that go beyond the official level too which the Government needs to address.

Would the public ever have been informed of the “immunity waiver” without media inquiries in this and other cases?

The signals coming out of the Beehive are “probably not”.

These cases should routinely be disclosed because the public have a right to know when the judicial system has been thwarted by the Vienna Convention and which countries invoke immunity, and in what circumstances.

There is no reason to shield any country from the New Zealand public’s right to judge their actions in such instances, particularly where alleged criminality has occurred against a member of the public.

Some things are simply beyond any “diplomatic” instinct to repair and smooth relations.

How was the Herald informed about the case and why? It seems to have been leaked information which is a very poor way to deal with this out of a diplomatic organisation where following protocols are supposed to be paramount.

And there’s a big question that needs to be asked.

Have other criminal cases been swept under the diplomatic carpet?

This was probably an unusually serious case, but the public and possibly our politicians simply don’t know. We should.

There needs to be full and open disclosure from MFAT on what if any other cases involving immunity there have been. We need to know if there have been more muck ups and if there have been more cases kept secret from the public.