3 take-aways from the Michael Flynn pardon
In the aftermath of President Trump’s long expected pardon of Michael Flynn, most questions fall into three categories: Legality, Effect, Future Pardons. Here’s my take on what is likely to be the first in a series of presidential pardons.
Is the Flynn pardon legal? Yes. Suggestions that the pardon is illegal and perhaps subject to being overturned by a judge are wishful thinking and ungrounded in the law. Article II of the Constitution specifically gives the president the “power to grant reprieves and pardons for offenses against the United States” and it’s hard to imagine any presidential pardon falling outside that broad authority. While it may seem a morally corrupt action by Trump to pardon a defendant who has twice admitted his guilt, moral outrage does not make legal cases.
Like any other power created in the Constitution, the pardon power is normally implemented through processes which have been created to bring order and fairness. This is the role which Department of Justice’s Office of the Pardon Attorney has come to play over the years. When I was counsel to Attorney General Janet Reno, I witnessed firsthand the long, rigorous work-up of any cases being considered for pardons. That process functioned as guardrails for what might otherwise be a completely haphazard process based solely on whether the pardon seeker had personal connections to the president — sound familiar? But the guardrail hasn’t been invented that can’t be jumped by persons — or in this case an administration and president — intent on circumventing the usual processes.
What effect does the Flynn pardon have? A presidential pardon does not confer the broad protections of a grant of immunity. The pardon is limited to federal crimes so Flynn is still exposed to potential state charges or even new federal charges. However, the likelihood that a Biden DOJ would bring charges arising from the same circumstances of the Russia probe is unlikely because DOJ would be worried about appearing vindictive or politically motivated. Really, a Biden DOJ would actually care about those issues.
Flynn does lose his Fifth Amendment protections for the crime to which he pled guilty. But the question of whether he might still invoke the Fifth Amendment in future investigations, including ones focused on Trump would have to be litigated on a case-by-case basis. Courts, however, rarely construe losses or waivers of the Fifth Amendment in sweeping terms so any legal fight over the scope of the pardon’s effect would be complicated and drawn-out.
Who else will get pardoned? Paul Manafort, Trump’s former campaign manager, is an odds-on favorite for a pardon. He is serving prison time for a federal case and has refused to roll-over and cooperate against Trump. But on the other hand, Trump has little history of rewarding loyalty and may see no benefit to himself in pardoning Manafort. Other candidates for a pardon would be the Trump children, Ivanka, Don Jr., Eric, Tiffany and even son-in-law Jared Kushner. Here the protection of his pardon would be limited since they would still be vulnerable to state prosecutions like the one under investigation by the Manhattan District Attorney and New York State Attorney General.
Can Trump pardon himself? This is hotly debated by Constitutional law scholars but my view as a practitioner is the answer is probably yes. But more importantly for Trump, granting himself a pardon would tie up potential federal prosecutions against him for some time in the federal courts. The end game there would be Trump’s hope that his pardon gambit would end up before the U.S Supreme Court. Once there, Trump could rest his fate on the newly conservative majority ruling in his favor by relying upon their “originalist” theories to mask their bias favoring broad presidential powers. Still, pardoning himself only buys Trump limited protection as some of the gravest threats to him criminally are in the hands of state authorities over whom he will soon lack any leverage whatsoever.
Shan Wu is a former federal prosecutor and CNN legal analyst. He served as counsel to former Attorney General Janet Reno and writes frequently on racism in the law. (Twitter handle: @shanlonwu).