Michael Flynn Should Listen to a Lawyer (Perspective)

Editor’s Note: The author is the Louis Stein Chair at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics.

Retired General Michael T. Flynn recently received unsolicited legal advice from an unlikely source — a businessman-turned-president, Donald Trump. Presumably, Flynn would be better off accepting advice from an experienced criminal defense lawyer.

Flynn must decide how to respond to congressional and criminal investigations into whether the Trump campaign collaborated with Russian officials to try to influence the presidential election. On one hand, Flynn could offer to cooperate with a congressional committee or federal prosecutors in exchange for immunity — a promise that, as long as he tells the truth, his testimony cannot be used against him in a future criminal case. On the other hand, he could refuse to testify based on his constitutional right against self-incrimination, running the risk of being prosecuted later based on evidence amassed from other sources.

This choice is a tough one for subjects and targets of criminal investigations. If Flynn testifies under a grant of immunity, he can probably breathe easier even if he admits to unlawfully collaborating with the Russians. He could not later be prosecuted for that wrongdoing if any bit of the government’s evidence against him may have been derived from his immunized testimony.

That’s what undid the prosecution of Lieutenant Colonel Oliver North more than a quarter-century ago for his role in the Iran-Contra affair. The Iran-Contra prosecutors responsible for the case did everything they possibly could to avoid reading, using or being affected by North’s testimony in Congress. But an appellate court overturned North’s conviction because the Iran-Contra prosecutors could not show that the government witnesses were themselves uninfluenced by North’s immunized congressional testimony.

But if Flynn testifies before Congress or a grand jury, even with immunity, there are risks. The promise of immunity does not protect him from a perjury prosecution if he lies under oath. And his testimony may prove embarrassing and could be used against him in a civil proceeding.

On March 31, President Trump gave his thoughts publicly, via tweet, about how Flynn should resolve this legal dilemma: “Mike Flynn should ask for immunity in that this is a witch hunt (excuse for big election loss), by media & Dems, of historic proportion!”

But the law presumes that when people like Flynn need legal advice, they are better off getting it from lawyers. To encourage people with legal problems to go to lawyers, the law allows them to confide in lawyers subject to the protection of the attorney-client privilege. Conversely, to discourage people from seeking legal advice from those who are unqualified and unregulated, state laws forbid the “unauthorized practice of law” (UPL). If President Trump got tired of heading up the federal executive branch and decided to take up a new challenge, UPL laws would bar him from establishing a law practice and meting out legal advice to clients caught up in criminal investigations.

Even if President Trump were a lawyer like some of his predecessors in the White House, there would be impediments to advising Flynn, his former national security advisor. To begin with, lawyers cannot give legal assistance in areas where they are unqualified. Therefore, unless the president had the requisite knowledge and experience (or could acquire it quickly), the president would be barred by the competence rule from advising Flynn whether to seek immunity or lay low.

Further, a lawyer in this situation could not competently advise Flynn without first learning the relevant facts — both by interviewing Flynn and by investigating. Although President Trump recently described himself as an “intuitive person,” and there is a body of literature — including Malcolm Gladwell’s book, “Blink: The Power of Thinking Without Thinking” — identifying situations where intuition may be better than deliberation, lawyers are not allowed to rely on intuition alone. They are told: “Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem.”

Perhaps most importantly, conflict-of-interest rules forbid lawyers from advising clients when the lawyers are incurably self-interested. Even a seemingly remote risk that Flynn’s testimony would implicate the president in a crime would make it impossible for the president — if he were a lawyer — to advise Flynn whether or not to seek to cooperate in exchange for immunity.

An earlier government scandal is instructive here. President Nixon, who was a lawyer (and a former name partner in a Wall Street law firm), suggested to his aides how to respond to the Watergate break-in. Things didn’t end well for either the president or his aides.

This column does not necessarily reflect the opinion of the editors at Big Law Business or its parent owners, Bloomberg BNA and Bloomberg LP.