Trump Pardons Flynn
For some time, we’ve been following the legal turns of this case. It was not entirely unexpected that Trump would issue a pardon to Flynn.
Predictable but still disgraceful.
When we last saw this case, US District Judge Emmett Sullivan had finally held his hearing on the DOJ’s motion to withdraw all charges against Flynn, who had twice pleaded guilty to the felony of lying to the FBI about phone conversations he’d held with the Russian ambassador to the US, just before Trump was sworn in. Flynn, in pleading guilty, agreed to cooperate with Federal investigators in the Mueller matter. His sentencing was postponed while his cooperation was pending. As part of his plea deal, he was never charged with illegally serving as an agent for a foreign government (Turkey) even though there was ample evidence to support that case.
Judge Sullivan had not yet ruled on the DOJ Motion, but his decision was expected soon. Assuming that he did not dismiss the charges, he was expected to sentence Flynn at that time. He was also expected to question — if not impose sanctions — on the DOJ for their conduct in the case — which, as fully validated by today’s pardon, smacked of cronyism.
Then there is the involvement of Flynn’s lawyer, Sidney Powell, in the post-election chicanery by Trump’s legal team. Her conduct has been so bizarre that she was jettisoned by Rudy Giuliani. She has lots of pending legal bills. Perhaps Flynn will follow the example of his pardoner and simply not pay her — since she’s no longer in with the “in” crowd (which, of course, is itself on the way out).
It would have been safer for Trump to commute any sentence which Judge Sullivan might have handed down (as he did with Roger Stone). With a full pardon, Flynn can now be compelled to testify in future Federal investigations, under circumstances where he might otherwise have been able to plead the protection of the Fifth Amendment. He can no longer incriminate himself. If he refuses to testify, he can be jailed for contempt.
I assume that this renders the proceedings before Judge Sullivan moot. He can’t touch Flynn. However, there is a slim chance that he might still go after the DOJ for misconduct. As officers of the Court, they engaged in some wildly inconsistent behavior before Judge Sullivan.
In 2008, after Alaska Senator Ted Stevens had been convicted for corruption (and lost his Senate seat following conviction), Judge Sullivan dismissed the charges because of prosecutorial misconduct by the DOJ. He brought contempt charges against the prosecutors.
Judge Sullivan has been like a beacon in this case — shining attention on the shady machinations of Bill Barr’s DOJ. I hope that he at least takes the opportunity to state his findings even though further prosecution of Flynn is preempted.
Finally, I have to say I’m surprised that Trump waited until after the election to do this. I can’t imagine that he would have lost a single vote among his deeply indoctrinated followers.