Vail Law: Here’s the trouble with President Trump potentially pardoning Michael Flynn (column)
“Collusion: A secret agreement or cooperation especially for an illegal or deceitful purpose.”
There is little doubt that members of the Trump administration colluded with the Russians in the 2016 presidential election. What remains to be seen, however, is whether that collusion was illegal. Ferreting that out is, in part, the task of Special Counsel Robert Mueller’s team. Some of the fine hairs to be split in the ongoing investigation are whether certain acts performed by Trump’s operatives crossed the line from merely opportunistic to illicit. In the definition, above, you will note that not all collusive acts spill into criminality.
Recently, our bloviating president, hinted that the presidential pardon power might be exercised in favor of his former Nation Security Adviser Michael Flynn. In his presidency-as-reality-show-style, Trump responded to a reporter’s question as to whether that was in the offing with a harrumphed, “Let’s see.”
While Mr. Trump may be well within his rights to spring Flynn with a pardon, whether he’d be wise to do so deserves closer examination.
Repercussions of Flynn’s plea
Late last month, Flynn plead guilty to lying to the FBI, which, as you might suspect, is frowned upon and may subject him to hard time in the nearest pokey. His plea portends the likelihood of a greater conflagration in the White House ending, possibly, in impeachable charges being brought against the president of the United States. Gen. Flynn, a former national security adviser, whose tenure in the White House was as brief as the lifespan of a fruit fly, has acknowledged that he is cooperating with the investigation.
While the repercussions of Flynn’s plea will take months to fully evolve, it is not hyperbole to hold that the events to which he has agreed to lend witness may well foment a tsunami which could overtake the presidency in the same way that the Watergate scandal swamped the Nixon reign of deceit, dissembling and King Nixon’s ultimate abdication from the presidential throne.
All of this, presumably, has Trump’s silk undies in a bunch.
In considering a presidential pardon, what Trump is presumably ruminating over is whether pardoning Flynn might cut off the steamrolling Mueller investigation at the knees.
Power to Pardon
So, what exactly is the presidential power to pardon, and from where does it derive? Perhaps unsurprisingly, it arises from the United States Constitution, specifically Article II, Section 2. That section provides that “The President shall … have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” By the way, as interpreted by the courts, the President’s power to pardon is absolute. Pardons cannot be blocked or equivocated by Congress or the courts.
If the president wants to give Flynn a get-out-of-jail-free card, then he likely can.
But as the famous TV trope goes, “But wait, there’s more!”
Besides the questionable political optics of setting free the general, there are other, perhaps more substantial, things to consider.
First, in flashing smoke signals to Flynn with his “Let’s see” comment, a clever prosecutor might conceive of Trump tampering with Flynn-as-witness. In its “play ball with me and I’ll extend a pardon to you” implications, Trump might have waded into quicksand.
Witness tampering is a form of obstruction of justice through an attempt to harass, influence or intimidate a witness before or after his or her testimony. It is — oops — a criminal offense. Did Trump’s suggestion that greener pastures may lie ahead for Gen. Flynn should he suffer sudden and profound aphasia rise to witness tampering? Presumably the Mueller team will sort that out.
Second, look back a couple of paragraphs. You’ll note that the presidential power to pardon extends only to “offenses against the United States.” Should state charges be brought against Flynn, the presidential pardon would flap like a tattered mainsail in the wind.
Fasten your seatbelts
Perhaps most troubling for the president: Should he cloak Flynn with a presidential pardon, the Flynn canary might sing more loudly.
The reason is this: Even if a pardon were conferred upon the general, then he could still be called to testify before the Congressional investigative bodies looking into the whole Russian meddling mess. And here’s the kicker: If Flynn were granted immunity, then he would have to tell the truth, the whole truth and nothing but the truth without protection of the Fifth Amendment’s right against self-incrimination. Since he would have been granted immunity, he could not — even by the most tortured gymnastics — incriminate himself. And, since he could not incriminate himself, “taking the Fifth” would not be open to him.
This may be a major “Yikes!” moment from the White House’s point of view. Instead of a presidential pardon making Flynn go away, what it might do instead is sharpen the point on the tip of his spear.
This is a fasten-your-seatbelt moment in American history.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com.
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