How A Trump Pardon Would Affect Flynn’s Plea Agreement.

And Implications for Impeachment.

Russia collusion special prosecutor Robert Mueller started December by bagging his second conviction. The conviction by guilty plea of Michael Flynn is likely more significant than that of George Papadopoulos or the indictments of Paul Manafort and his assistant and Rick Gates. Unlike the others Flynn was involved at the highest levels of the Trump Campaign from very early on and was then briefly in the Administration as he was appointed by Trump (against Obama’s advice) to the highest position in our national security apparatus.

Flynn joined the campaign in February 2016 and was pretty much involved in everything until fired from his position as Director of National Security on February 13th of this year. The now convicted former Chief of America’s intelligence and security apparatus was a keynote speaker at Trump’s Republican National Convention. With irony that now seems surreal Flynn lead chants of “lock her up” while saying that if he did one-tenth of what Hillary Clinton did “I would be in jail today.”

With Flynn’s conviction Mueller has landed a very big fish. It is also a fish that lands very close to Donald Trump personally. Flynn confirms the illegal contacts he had with the Russians in late December 2016 were done in close consultation with Trump’s son-in-law, Jared Kushner. Further, Flynn is now officially “flipped” as his plea agreement requires his full cooperation with Mueller team. This leads to an intriguing question.

What would the impact of a Trump pardon of Flynn have on that plea agreement?

A plea agreement is a contract between a defendant and a prosecutor’s office. In this case Special Prosecutor Mueller’s office. Like any contract it must provide “mutual consideration.” That is to say it has to contain benefits to both parties. In this case the consideration given by Flynn includes:

  1. Flynn agrees to plead guilty to two charges of lying to the FBI, a violation of 18 U.S.C. 1001 which carries a maximum five year penalty. This saves the prosecutor’s office the difficulty and expense of trying the case and risk of losing associated with trial.
  2. Flynn agrees to stipulate that a “Statement of Offense,” describing various facts regarding Flynn’s conduct (and those he worked with) “fairly and accurately” describes Flynn’s “actions and involvement in the offenses” to which Flynn is pleading guilty. The Statement of Offense includes an admission to also lying when Flynn submitted his Foreign Agents Registration Act application in March 2017.
  3. Flynn agrees to fully cooperate with Mueller investigation. In the words of settlement agreement Flynn:
shall cooperate fully, truthfully, completely and forthrightly with this Office and other Federal, state and local law enforcement authorities identified by this Office in any and all matters to which this Office deems cooperation relevant.

Of course to be a legal contract Flynn has to get something out of the deal as well. The consideration by Mueller’s office includes:

  1. Mueller’s office agrees to not prosecute Flynn for one of the three offenses admitted to in the Statement of Offense, involving false statements on his Foreign Agents Registration Act application in March 2017.
  2. Mueller’s office agrees to recommend to the judge certain lenient stipulations under sentencing guidelines. The judge is not bound by these recommendations, but as a practical matter the judge’s acceptance of the plea agreement on December 1 means the judge will. The government’s recommendation would reduce the maximum sentence from five years to 0–6 months. Obviously, that’s a lot of consideration.

The enforcement to the agreement is that if Flynn does not comply he is in breach and the government is no longer bound by its promises. In the words of the plea agreement:

“In the event [Flynn] should fail to perform specifically and completely each and everyone of [Flynn’s] obligations under this Agreement, (a) the Government will be free from it’s obligations under this Agreement (b) [Flynn] will not have the right to withdraw the guilty plea; (c) [Flynn] will be fully subject to criminal prosecution for any other crimes including perjury and obstruction of justice’ and (d) the Government will be free to use all statements made by [Flynn], directly and indirectly, in any criminal or civil proceeding, all statements made by [Flynn] . . . pursuant to this Agreement.”

In regards to cooperation with Mueller’s team the agreement is specific that:

Any refusal by [Flynn] to cooperate fully, truthfully, completely and forthrightly with this Office and other Federal, state and local law enforcement authorities identified by this Office in any and all matters to which this Office deems [Flynn’s] cooperation relevant will constitute a breach of this agreement by [Flynn] and will relieve this Office of it’s obligations under this Agreement.

This is all typical stuff for plea agreements. What is not typical is the closeness of this man’s guilty plea to an active investigation of the President of the United States. Can President Trump effectively torpedo Flynn’s obligation to cooperate with Mueller by pardoning Flynn?

For all practical purposes the answer is “yes.”

Trump can pardon Flynn for all crimes related to the plea agreement. He could even more broadly pardon Flynn for any crime related to Mueller’s investigation.

This would reduce the consideration granted by the government in the plea agreement to meaninglessness. Therefore the enforcement by the government, of withdrawing that consideration, is meaningless. Flynn would be free to breach the plea agreement, by refusing to cooperate, with no consequences.

Is A Trump Pardon Likely?

Thus, Trump has good reason to quickly pardon Flynn and undermine his cooperation with Mueller. A pardon would also send a message to other witnesses that the President will have their back with his pardon pen. Finally, Trump may pardon Flynn because the whole Mueller investigation leading to Flynn’s conviction is all Trump’s fault. Trump’s notorious “James Comey better hope there are no “tapes of our conversations” is what provided the impetus to appoint a special prosecutor. So Flynn has Trump to thank for that.

Still, I don’t think a Trump pardon is likely, though with this emotionally volatile President anything is possible. Any pardon is associated with practical risks, political risks and legal risks.

As a practical matter Trump does not know how effective a pardon would work to frustrate Flynn’s cooperation because he does not know how much Flynn has already told Mueller. All the damage may have already been done in that regard.

As a political matter the optics would be horrible. To matter the pardon would have to come quickly, and it would certainly have all the appearances of Trump doing it to kill the Russia investigation. The Senate already has a few Republicans openly disloyal to the President, this would create more. With the American public it would amplify an already unpopular President’s disapproval ratings. The political distraction of such a pardon could derail legislative agendas, to include tax reform.

Could A Flynn Pardon Fuel The Drive To Impeach Trump?

As a legal matter a pardon would raise profound questions of witness tampering and obstruction of justice. The President clearly has the power to pardon, however, that does not permit him to commit a crime in the act of doing it. An obvious illustration of this would be a case where a President issued a pardon in exchange for a bribe. Accepting a bribe in exchange for an exercise of an otherwise permissible Presidential power is a crime no matter what that power is.

Obstruction of justice and witness tampering are crimes to. I discuss them more, and quote their specific statutory definitions, in an earlier context here. Suffice it to say that acts intended to adversely impact investigations, or persuade witnesses to withhold testimony violate the law. If Trump pardons Flynn for these reasons it’s a high crime or misdemeanor.

There is historical precedent for this. Before his resignation rendered it moot, Articles of Impeachment were prepared against Richard Nixon for his obstructing justice and attempting to influence witnesses in the Watergate investigation.

For Donald Trump obstruction of justice is not suggested by a single, isolated incident. Trump pardoning Flynn would just become another thread woven into the fabric on an increasingly undeniable pattern. The firing of Phreet Bharara. The firing of Sally Yates even as she warned the White House about Flynn. Seeking a loyalty pledge from FBI Director Comey. Pressuring Comey to drop the Flynn investigation. Firing Comey when he didn’t. Publicly calling the investigation of Flynn a “witch hunt.” Trying to influence Comey’s testimony with the “he better hope he wasn’t taped” tweet. And so on.

The President again added to that pattern with yet another self-indicting tweet that the White House later absurdly tried to blame on Trump’s lawyer.

Trump admits when fired Flynn he knew Flynn had lied to the FBI. Yet, the day after firing Flynn, Trump asked Comey to drop the Flynn investigation saying he hoped Comey could “let this go.” In short, Trump asked the Director of the FBI to drop an investigation of a man Trump knew was guilty. That is a strong indication of an intent to obstruct justice, an indication further enhanced by it merely being another thread of many woven into a pattern that is hard to deny.

It should be noted that the day after requesting Comey drop the investigation, Trump described Flynn as “a wonderful man” who was “treated very, very unfairly” by the “fake media.” Trump also later said the investigation of Flynn was a “witch hunt.” He said these things all while knowing Flynn was guilty.

Trump has been dishonest about this all along. I doubt an investigation getting very close to his son and son-in-law will drive him to greater honesty.

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