The disclosure of a raft of immunity grants—hey, Allen Weisselberg, David Pecker, and Dylan Howard—has sparked a so-far incomplete debate. Immunity’s been much discussed, but little interrogated.
These grants of immunity are neither new (they date to the Michael Cohen investigation and prosecutors’ efforts to build a case against him) nor dispositive. They’re significant in that immunity wouldn’t have been necessary had the men not been criminally liable in some fashion. But that doesn’t mean that any of them substantially advanced a case against anyone but Cohen. These grants also aren’t a panacea for these guys.
Let me explain.
We’re talking about federal immunity, which can be one-off (proffer letter), a deal between the government and a witness (letter), or judge-granted (statutory). These gents presumably received letter immunity, which means prosecutors decided what they had to say about Cohen was worth not using it against them. It’s a strong variety of immunity, sometimes called “blanket immunity.” But it has limits.
You’re granted immunity with respect to what you disclose—and only what you disclose. Neither your testimony nor evidence that derives from it can be used against you, but you can still be prosecuted for unrelated charges, things you said nothing about. An immunized witness can even still face related charges if prosecutors can build a case independent of the information a witness provided on the condition of immunity, though it’s an ethically dodgy move.
Weisselberg, as a longtime Trump loyalist and CFO of the Trump Organization, has almost endless potential to assist prosecutors investigating the organization and members of the Trump clan. That doesn’t mean that’s why prosecutors decided to grant immunity, that Weisselberg did more than confirm Cohen’s account, or that they’ll act on that information. (We can only hope.) Yes, Weisselberg no doubt implicated Trump, but Cohen’s already said he acted at the direction of the candidate.
That’s not to say full cooperation is unlikely—it’s not. It’s highly likely that Weisselberg’s gone over for good given just how much wrongdoing the Trump Organization seems to have committed, facilitated, or been party to. But it is possible that the grant of immunity could be very narrow. There’s not yet been any indication that prosecutors were seeking more than information to bolster their case against Cohen.
What’s most important is that the tide’s turning on cooperation. And, as Ted Lieu pointed out, prosecutors are being aggressive.
We’ll take what we can get.