If you’ve been watching the Michael Flynn saga unfold, in which Flynn has offered to testify about the Trump’s administration’s ties to Russia, you might be curious. Curious about what Flynn has to say, of course (wouldn’t we like to know!) but also curious just simply about his strategy: Why now? Why not a month ago or a month from now? Perhaps you have asked yourself, “If I were part of some nefarious operation, be it organized crime or, say, merely colluding to adjust U.S. policy to benefit a foreign power, how would I know precisely the right time to pull the rip cord on the prisoner’s dilemma and offer to testify in exchange for immunity?”
I mean, if you were either accidentally or deliberately a cog in a shady enterprise, and you felt like the Federalis were sniffing around your door, how long can you bluff, and more importantly, keep your nerve?
It’s a tricky question, says Matt Kaiser, a former federal public defender and partner at KaiserDillon in Washington, D.C. And the answer depends on what you know, what you think the prosecution knows, how well you know your co-conspirators (and how likely they are to flip on you), the climate at large, and a little bit of game theory.
As a general rule, though, Kaiser says, “If you’re in a situation in which serious criminality in taking place, the feds are on to you, and it’s starting to get real, the moment you want to flip is the exact moment it’s clear they’re going to go forward—but before anyone else flips.”
Okay, so what happens if you jump the gun, or if you delay too long? Kaiser says, “One awkward thing that happens every now and then is that someone flips too early and enters a guilty plea. Then later the court or a jury determine that what happened wasn’t really a crime.” So, for a deed that didn’t actually turn out to be a crime, you go to prison anyway, or your lawyer scrambles to undo the plea.
And if you wait too long? “Plenty of people who are just too late. If you’re the fifth person, it’s just too late. You don’t get any credit.” They don’t need you anymore.
Kaiser says that the whole exercise of offering to testify in exchange for immunity is a little like a dance, or a poker game. “That’s the really fun part of these negotiations: I start off with “You should give my guy a complete ‘get out of jail free’ card, and I can’t tell you why. “And the other guys says, ‘You’re a nice guy, but, well, no.’ Then you give them a little bit more information; they give you a bit of information. It’s like dating. And if you’re not careful, you get a bad reputation.”
Oh, and if you’re a woman, and you’re involved in a shady enterprise? Read up on the prisoner’s dilemma. When Kaiser was a federal public defender, more than half his clients were women. “The gender part of this just heartbreaking. These poor women, who were just the wives and girlfriends, were getting squeezed by a prosecutor to say something about the men. The guys would flip on each other all the time. The girlfriends and wives frequently stood by their man and just got pounded for it.”
So what does Kaiser think—did Flynn flip too early or too late? He laughs. “I don’t know. We don’t know what he knows. If we did, it wouldn’t be useful.”