Outgoing President Donald Trump launched what will likely be the first in a series of pardons from his associates last week, with his sorry for former national security adviser Michael Flynn.
Flynn pleaded guilty to making false statements to investigators back in 2017 – but that’s not all Trump forgave him.
The typical operation of pardons is that the recipient is pardoned for specific crimes. But Flynn’s stands out because it also has preventative aspects – that is, it’s written in big terms to try to forgive Flynn for possible crimes he hasn’t even been charged with.
Preventive pardons aren’t unprecedented, but they are unusual and come much closer to some sort of presidential statement that the president’s associates should be above the law. And Trump’s use of tactics for Flynn indicates how far he could go in his final weeks in office.
Several of Trump’s former top campaign advisers – Steve Bannon, Paul Manafort and Roger Stone – have been charged or convicted of specific crimes, for which they could be pardoned. (Trump has already commuted Roger Stone’s sentence but has yet to grant him a full pardon.)
The universe of potential preventive pardons, however, is much broader. For while many of Trump’s associates have been charged with crimes, even more have been investigated but faced no charges.
For example, there is the lawyer for President Rudy Giuliani. the Maggie Haberman and Michael Schmidt of the New York Times reported Tuesday morning that, “as recently as last week,” Giuliani raised “the possibility of receiving a preventive pardon” from Trump (although Giuliani denied this on Twitter). Federal prosecutors in New York City investigated Giuliani’s business activities and charged two of his associates.
And some of Trump’s allies are urging him to push preventive pardons even further. “I would tell President Trump to forgive you and forgive your family,” Fox host Sean Hannity said Monday. It is still unclear whether Trump will attempt to go this far (in particular, a self-pardon may not be legal and the president cannot pardon of state crimes), but it’s pretty clear that his lame forgiveness shenanigans are just beginning.
Flynn’s forgiveness is very broad, and much of it is preventive
In December 2017, Michael Flynn, Trump’s former national security adviser, pleaded guilty to one count of misrepresenting (lying to the FBI about his conversations with the Russian ambassador). Since then his case has become a long legal saga – first Flynn tried to withdraw his plea, then a new team from the Department of Justice sought to have the case against Flynn dismissed, and the judge in the case, Emmet Sullivan, weighed whether he should allow this last movement.
Trump announced last week that he had pardoned Flynn, but no document justifying the pardon clarifying his parameters was released until Monday evening. Here is what did he look like:
Pardon begins by listing the crime to which Flynn pleaded guilty: making false statements to federal investigators. But it covers much more than that. Flynn is also pardoned for:
- “All possible offenses arising from the facts set out in” the indictment documents in his case (Flynn also admitted making false statements in the documents filed by the Foreign Agents Registration Act about his work for the Turkish government)
- any offense “which may arise, or be charged, claimed or invoked in the course of the proceedings” in his case (for example, had a discussion on whether Flynn could be charged with perjury by admitting his guilt under oath in court and changing course)
- “All possible offenses within the authority or jurisdiction of investigation” of Special Advocate Robert Mueller, and “all possible offenses arising out of known facts and circumstances, identified by or in any way connected to “Mueller’s investigation (i.e., if Mueller has found anything else that Flynn could be criminally charged with, the pardon is meant to cover that up)
So this is not a typical pardon, which targets crimes with which a person has been accused or convicted. It’s a preventative pardon, designed to prevent Flynn from being charged in the future.
In that regard, it sounds like the unconditional preventive forgiveness President Gerald Ford bestowed on his former boss and predecessor Richard Nixon – a blanket pardon for any criminal offenses Nixon might have committed during his presidency.
Flynn’s pardon isn’t that broad, but it is clearly designed to try and eliminate the possibility that Flynn will face further charges related to the ongoing case against him, or in any way. be linked to the Mueller investigation.
Will Trump issue more preventive pardons?
The New York Times has already confirmed that a preventive pardon is under discussion – for Giuliani.
Late last year, news broke that federal prosecutors at the United States Attorney’s Office for the Southern District of New York (SDNY) were reviewing Giuliani’s affairs and finances, exploring his contacts with former senior officials. Ukrainian officials and were investigating a multitude of potential crimes (justice, money laundering, acting as an unregistered agent of a foreign government, mail fraud and electronic fraud).
Two of Giuliani’s associates, Lev Parnas and Igor Fruman, were charged with campaign finance violations in October. The couple are said to have helped Giuliani establish links with Ukrainian officials who claimed to know scandalous information about the Biden family that could be of use to Trump. (The exposure of Trump and Giuliani’s efforts to smear Biden by Ukrainian officials ultimately resulted in Trump’s impeachment.)
This year there have been few new developments in this area. CNN reported that the investigation into Giuliani “has been disrupted by the coronavirus pandemic, limiting the ability of prosecutors to question witnesses, gather additional evidence and meet the grand jury.” Giuliani has not been charged, but if this investigation is serious and still ongoing, he is obviously hoping for a pardon while his client is still in charge of executive power.
There were also discussions – at least Sean hannity – on preventive pardons for members of the Trump family.
Trump’s son Donald Trump Jr. has come under scrutiny in the Mueller inquiry but was ultimately not billed. Trump himself was also questioned on obstruction of justice, but Mueller chose not to indict him, in part because Trump was the sitting president.
President Trump could try to forgive himself, but it’s unclear if it would be legal (a popular theory among the #Resistance is that Trump will resign early and let newly installed President Mike Pence forgive him). One problem here, however, is that the president lacks the power to pardon state crimes – and he is currently under investigation for possible bank and insurance fraud in New York State.
Now, if Trump is serious about running for president again in 2024, he might have political reasons to hold back on broader assertions of his pardon powers. There again, he might think that he laid the foundations for the defense of these movements, having denigrated any investigation of himself or of one of his relatives as “witch hunts”. All that is clear now is that his forgiveness has only just begun.
Some who want pardons support Trump’s ‘stolen election’ lies
Finally, there has been a notable pattern among those who are likely to seek forgiveness: They tend to defend Trump’s lies and conspiracy theories that the 2020 election was stolen from him.
Giuliani, of course, was in charge of Trump’s post-election legal fight, spread false allegations of widespread electoral fraud when he allegedly requested a preventive pardon.
Attorney Sidney Powell – Flynn’s attorney – stood up with Giuliani at a press conference two weeks ago particularly weird allegations of fraud. (She claimed that the Dominion voting systems company rigged the vote against Trump, in part because there was “Communist money” involved and the company had ties to the late Venezuelan dictator Hugo Chávez. .) Powell filed lawsuits filled with similar false allegations. (Flynn himself said “There’s no question in my mind” that Trump won in a “landslide.”)
Whether or not there was an explicit consideration here, it is clear that all of these people were interested in forgiveness (in Powell’s case, for his client), and that all of these people knew the importance of pleasing them. man who could deliver these pardons. . Indeed, the main champions of Trump’s post-election fraud lies have been people who wanted Trump to forgive someone – which reveals how bad faith is at stake here.