Why the Flynn Pardon Matters

Gen. Michael Flynn (Gage Skidmore, https://flic.kr/p/MK3kCj; CC BY-SA 2.0, https://creativecommons.org/licenses/by-sa/2.0/). 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 Advisor 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.  But the Flynn pardon deserves a moment’s pause, particularly now that Judge Emmet Sullivan has dismissed his criminal case in a 43-page ruling that came 13 days after the pardon itself was announced . The reason is three-fold: 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 Judge 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, on the other hand, 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 , it actually works the way he 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 post-election 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 DiSouza; 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 professional 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 towards 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 making 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 Judge 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 Judge 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, Judge Sullivan states that “Flynn made a series of materially false statements to FBI investigators during an interview at the White House on January 24,
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