Published by The Lawfare Institute
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Axios is reporting that President Trump “plans to issue a wave of pardons today, moving to expedite acts of clemency before Christmas, according to a source with direct knowledge and advocates who have been briefed on the plans.”
I’m still hung up on his last pardon.
Trump’s pardon of former National Security Adviser Michael Flynn, which took place just before Thanksgiving, was not a surprise. Nor should anyone be surprised that the pardon of the former three-star general barely remains in the public consciousness today, as the next slew of pardons is apparently about to arrive. The pace of nonsense news in the months leading up to the election and in the weeks following it has been such that dwelling on any one incident in the president’s stream of anti-democratic actions has a tendency to miss the forest for the particular tree.
The reason is threefold: first, because Flynn’s pardon is almost certainly a harbinger of things to come in the remaining 33 days of Trump’s presidency—starting, if you believe Axios, today; second, because of the substance of what Sullivan wrote about the Justice Department’s behavior in the case; and third, because of the aggregate fact pattern that the pardon completes with respect to Trump’s use of his powers to obstruct justice.
Before letting the next pardons news cycle crash over us like a breaker in a gale, let’s consider each of these briefly.
First, the Flynn pardon is most unlikely to be Trump’s last abusive use of the clemency power. Governance is hard, particularly for a president who is the lamest of lame ducks. Giving out pardons and commutations, by contrast, is not hard. Such grants of clemency don’t require coalition building. They don’t require the consent of the legislature. They don’t require any kind of administrative process or compliance with rulemaking standards. You just sign a document and it’s done. This is a compelling power for a president whose self-absorption is boundless and who’s running out of time to get things done.
Trump has long loved the pardon power, though not because of the good a president can do with it. He loves it because of the unchecked power it offers to make statements, make constituencies happy, give out goodies to friends and anger enemies. As Quinta Jurecic has written, the pardon power works the way Trump wishes the entire presidency works. For this reason, the Flynn pardon is likely to be the first trickle of what will ultimately be a flood of postelection clemencies—a flood composed mostly of controversial actions designed to energize core Trump supporters and irritate others. Look for this flood to include a number of different categories of pardon:
- The “own the libs” pardons. Trump has already done a number of these: publisher Conrad Black; conservative commentator Dinesh D’Souza; former Arizona sheriff Joe Arpaio. These are pardons that serve chiefly to anger Trump’s political opponents by rewarding someone who both flatters him and represents some value or set of values offensive to liberal opinion. They cost Trump almost nothing: A mainstream politician would normally pay a price for such actions in the form of public backlash, but Trump relishes the anger they generate. In any event, the twilight of an administration—when the duck is limping to the finish line—is when even mainstream politicians take this sort of action, such as when George H.W. Bush pardoned various Iran-contra figures or Bill Clinton pardoned Whitewater figure Susan McDougal. Flynn’s pardon had significant elements of this type of pardon, though there was more to it than that. Whatever other factors may have been at play in Trump’s decision to pardon Flynn, surely he also enjoyed the dismay of his foes.
- The “own the intelligence community” pardons—pardons designed to offend and punish the intelligence agencies for their professionalism over the past several years and the inconveniences that professionalism has caused to Trump. A number of right-wing and civil liberties figures have suggested pardons for Julian Assange and Edward Snowden, though Axios suggests that Snowden will not get a pardon today. Such actions may have a certain appeal for a president—who, like both Assange and Snowden—has a tolerant attitude toward Russian intelligence activity that benefits him and who does not care overmuch about revealing American intelligence activity to adversary actors. There has also been talk of late about clemency for Ross Ulbricht, the founder of the “Silk Road” dark web market—who is serving a life sentence in connection with a murder-for-hire scheme. This would arguably be more of a “own law enforcement” clemency, but the concept is the same.
- The reward pardons—the handouts the president can give to those who stuck with him, flattered him, or otherwise served his interests and ask nothing more in exchange than absolution for federal crimes. Roger Stone, whose sentence Trump commuted back in July, is the template here. And again, the pardon for Flynn—who reneged on his cooperation agreement with Special Counsel Robert Mueller and has become an enthusiastic participant in right-wing conspiracy theories—partakes of a certain amount of this type too. Don’t be surprised to see others of this type: Paul Manafort and George Papadopoulos, both of whom delivered underwhelming cooperation to the Mueller investigation, are potential candidates here, as are others.
- The self-protective pardons—those given to people who might be inclined to cooperate with law enforcement in the future and whose cooperation could be damaging. Stone is also an example of this category, which also overlaps significantly with a category of what we might call “preemptive” pardons—that is, pardons of people who have not yet been charged but who might fear law enforcement action some time in the future. This category, in turn, includes a number of people who are part of the president’s inner circle. So there have been rumors, for example, about potential preemptive pardons for Rudy Giuliani, as well as for the Trump children—actions that are potentially self-protective, are clearly preemptive and involve members of the president’s inner circle.
- All of these categories merge in the self-pardon, of course, which combines owning the libs with self-protection and preemption.
It’s impossible to know, at this stage, how aggressive Trump will be with his clemency power in his remaining days in office. But the Flynn pardon is very likely a harbinger of what’s to come. After all, the ability to pardon is a part of Trump’s patronage system. And patronage is important when one is asking members of one’s party to take extraordinarily anti-democratic positions in support of continuing, meritless challenges to the results of the election. The main tool of discipline Trump is using to keep Republicans in line is fear, but carrots are useful too, a reminder that the Godfather can make good things happen for those who are loyal, as well as make bad things happen for those who stray. Trump may be running out of carrots. But the costs of using pardons as carrots are also at a low point in the weeks before he departs office. So we should expect the aggressive use of clemency in the days to come.
This brings me to Sullivan’s opinion, which is also worth a moment’s contemplation—albeit not because of the judge’s appropriately cursory discussion of the pardon itself. The opinion is interesting, rather, because of its candor about the abuse of law enforcement in the Flynn case. Remember that months before the president’s pardon of Flynn, the Justice Department sought to dismiss his case—despite his guilty plea—because an internal review had supposedly undermined its integrity.
While Sullivan rightly holds these questions moot in light of the pardon, he uses the case’s dismissal to offer some thoughts on them nonetheless. These thoughts deserve more attention than they have received.
For all the Justice Department’s protestations in the case that it could not prove that Flynn had lied to the FBI and that any false statements were not material, for example, Sullivan states that “Flynn made a series of materially false statements to FBI investigators during an interview at the White House on January 24, 2017 about his conversations with the Russian Ambassador.” He makes clear that notwithstanding Flynn’s subsequent claims about the investigation—claims that have found a gullible audience even in certain respectable circles—“Under oath, Mr. Flynn confirmed that his rights were not violated as a result of the circumstances of his January 24, 2017 interview and the allegations of misconduct against FBI officials.”
He makes clear as well that “many of the government’s reasons for why it has decided to reverse course and seek dismissal in this case appear pretextual, particularly in view of the surrounding circumstances.” As to the government’s claims that it might have difficulty proving Flynn’s statements false or proving that they are material, Judge Sullivan writes that he “finds both stated rationales dubious to say the least, arguably overcoming the strong presumption of regularity that usually attaches to prosecutorial decisions.”
On the materiality of Flynn’s lies, the judge describes the government’s theory as “a newly-minted definition of ‘materiality’ that is more circumscribed that the standard in this Circuit”; he writes that it is “not the law”; and he characterizes the government’s adoption of it as “perplexing,” given the Justice Department’s previous arguments on the same point in the very case at hand. He notes that the government “offers no response as to why it relies on this new, more stringent definition” and does not “direct the Court’s attention to any other case in which it has advanced this highly-constrained interpretation of materiality as applied to a false statements case.” He concludes: “Where, as here, the government justifies its motion by ignoring applicable law to now question the strength of its case, substantial doubt arises about the government’s stated reasons for seeking dismissal.”
The judge is no more sparing in his account of the government’s new contention that it might not be able to prove Flynn’s statements false at all. Most dramatically, he notes that “under the terms of Mr. Flynn’s cooperation agreement, the government could have used his admissions at trial ... but the government ignores this powerful evidence.” Sullivan’s bottom line is that the government, by way of scuttling its own case, commits all of the following distortions of the evidence at hand: “asserting factual bases that are irrelevant to the legal standard, failing to explain the government’s disavowal of evidence in the record in this case, citing evidence that lacks probative value, failing to take into account the nature of Mr. Flynn’s position and his responsibilities, and failing to address powerful evidence available to the government.”
All of which is a long way of saying that Sullivan is accusing the Justice Department of lying about the Flynn case—lying about the evidence, lying about the law and lying about why it adopted a new position in the spring.
As Sullivan notes, the pardon moots the question of whether the judiciary has to tolerate this sort of behavior from the department—a complicated question with a number of wrinkles. In that sense, the pardon is not the worst possible disposition here. Flynn was likely to escape his conviction by one means or another anyway, it being exceedingly difficult to force the government to prosecute someone it is willing to lie to vindicate. At least with a pardon, there is no pretense that Flynn has been vindicated. The case was not dismissed because the Justice Department successfully sought dismissal for any of the farcical reasons it presented. Sullivan dismissed it, rather, because the president had pardoned Flynn. And he did so specifically noting that this did not imply Flynn’s innocence: “a pardon does not necessarily render ‘innocent’ a defendant of any alleged violation of law. Indeed, the Supreme Court has recognized that the acceptance of a pardon implies a ‘confession’ of guilt.”
So yes, Flynn gets relieved of all of the criminal consequences of his lies—but the judge was at least not put in the position of having to accept the government’s own lies about Flynn’s falsehoods. President Trump alone is responsible for the act of clearing Flynn. In the end, neither the Justice Department nor the judiciary has been implicated in that tawdry episode—which is rendered blessedly political, not a stain on the legal system, as a result of the president’s action. Given who the president is and would inevitably remain through the disposition of the Flynn case, it might just be the least bad outcome we could have expected.
All of which brings us to the third major point of interest about the Flynn pardon, which requires a brief trip back to the Mueller report. Recall that an interesting little section of the report deals with the president’s efforts to get Flynn not to cooperate with Mueller and his staff, and pardon talk is a part of that little section, which reads as follows:
As previously noted ... the President asked for Flynn’s resignation on February 13, 2017. Following Flynn’s resignation, the President made positive public comments about Flynn, describing him as a “wonderful man,” “a fine person,” and a “very good person.” The President also privately asked advisors to pass messages to Flynn conveying that the President still cared about him and encouraging him to stay strong.
In late November 2017, Flynn began to cooperate with this Office. On November 22, 2017, Flynn withdrew from a joint defense agreement he had with the President. Flynn’s counsel told the President’s personal counsel and counsel for the White House that Flynn could no longer have confidential communications with the White House or the President. Later that night, the President’s personal counsel left a voicemail for Flynn’s counsel that said:
I understand your situation, but let me see if I can’t state it in starker terms. ... [I]t wouldn’t surprise me if you’ve gone on to make a deal with ... the government. ... [I]f ... there’s information that implicates the President, then we’ve got a national security issue, ... so, you know, ... we need some kind of heads up. Um, just for the sake of protecting all our interests if we can. ... [R]emember what we’ve always said about the President and his feelings toward Flynn and, that still remains ....
On November 23, 2017, Flynn’s attorneys returned the call from the President’s personal counsel to acknowledge receipt of the voicemail. Flynn’s attorneys reiterated that they were no longer in a position to share information under any sort of privilege. According to Flynn’s attorneys, the President’s personal counsel was indignant and vocal in his disagreement. The President’s personal counsel said that he interpreted what they said to him as a reflection of Flynn’s hostility towards the President and that he planned to inform his client of that interpretation. Flynn’s attorneys understood that statement to be an attempt to make them reconsider their position because the President’s personal counsel believed that Flynn would be disturbed to know that such a message would be conveyed to the President.
On December 1, 2017, Flynn pleaded guilty to making false statements pursuant to a cooperation agreement. The next day, the President told the press that he was not concerned about what Flynn might tell the Special Counsel. In response to a question about whether the President still stood behind Flynn, the President responded, “We’ll see what happens.” Over the next several days, the President made public statements expressing sympathy for Flynn and indicating he had not been treated fairly. On December 15, 2017, the President responded to a press inquiry about whether he was considering a pardon for Flynn by saying, “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens. Let’s see. I can say this: When you look at what’s gone on with the FBI and with the Justice Department, people are very, very angry.”
A lot of water has flowed under the bridge since the Mueller probe wrapped up, so it’s worth bringing this section of the report up to date. Not only did the president, as the Mueller report describes, praise Flynn before he began to cooperate and send him encouraging signals through his lawyers. Not only did the president’s lawyers send threatening signals in response to Flynn’s decision to cooperate with Mueller and describe Flynn’s cooperation as hostile toward the president in a conversation with Flynn’s own counsel. And the story doesn’t end, as it did for Mueller, with the president seeming to dangle the possibility of a pardon in response to questions in the days that followed Flynn’s plea.
It goes on—because after Mueller’s work concluded, Flynn subsequently reneged on his cooperation agreement, as the president and his lawyers seemed to be urging during the investigation itself. Flynn adopted a story consistent with that of the president’s narrative, a story of an FBI and Mueller investigation out to get Trump and willing to break the rules in order to do so. The government itself ultimately conformed its story to this transparently silly narrative, which the judge regarded as factually and legally incorrect and probably pretextual.
And, finally, Flynn ultimately got his pardon.
That’s a heck of a coda to Mueller’s story. I doubt, for reasons I won’t detail here, that it could be proved beyond a reasonable doubt to be an obstruction of justice. But I also have little doubt that it was one—that the whole story, taken together, describes a protracted pattern of conduct by the president that was specifically intended to influence the interactions of a key witness with both prosecutors and the courts.
The Flynn pardon was weeks ago, but the world didn’t take weeks to move on. The beneficiary of the president’s grace celebrated his freedom on Dec. 17 by publicly declaring that “President Trump won on the third of November” and suggesting that his benefactor might seize election equipment in Georgia and Michigan and deploy “military capabilities” in key states he lost and “rerun an election in each of those states.” Just in case anyone might be confused, Flynn made clear he was contemplating the imposition of “martial law”—though he said he wasn’t urging that.
The president, in other words, bought not merely Flynn’s non-cooperation with prosecutors. He appears to have bought as well the former intelligence officer’s vociferous and public support for his attempts to undermine the election he lost.
As we look toward the next rounds of pardons, this latter trade may be the fundamental one Trump is seeking to replicate.