By Robert Willmann
According to the Twitter webpage of president Trump, he has issued a full pardon to Gen. Michael Flynn (ret.) today–
Emmet Sullivan, the judge presiding over the case, continues to engage in disgraceful conduct unbecoming of any type of judge, including by intentionally delaying a decision on the motion of the Department of Justice to dismiss the prosecution with prejudice. A dismissal with prejudice means the case cannot be re-filed.
Attorney Sidney Powell is working on the problem of voting fraud through electronic voting and counting machines, which is a very time-consuming and tedious task. I have been thinking that Flynn would have to file two more original mandamus actions in the federal Court of Appeals for the District of Columbia Circuit. The first one would be for the court to force Sullivan to quickly issue a written decision on the motion to dismiss by a date and time certain. Then, after Sullivan would almost certainly deny the motion to dismiss, even though current law requires it to be dismissed, Flynn would file an additional mandamus action for the court of appeals to order Sullivan to grant the motion and dismiss the case.
However, since Powell is preparing legal action about election fraud issues, and one of the other lawyers representing Flynn is working on election problems in Nevada, they would not have time to bring two mandamus actions in the D.C. Circuit before 20 January 2021. The risk is too uncertain about the status of the Justice Department and what will happen in January when Congress meets regarding the election results from the Electoral College and an inauguration is to take place. Although Flynn would ultimately succeed in getting his case dismissed — if he was not facing a tight time frame — the unpredictability of the situation makes a pardon a practical result.
Trump did the right thing with regard to Flynn. To leave him “turning in the wind” at the mercy of the Biden administration and Sullivan would have been terrible.
As you imply Colonel, Trump really had no alternative. Does being pardoned as opposed to not guilty have any affect on his military standing e.g. affect his pay?
Hacks in black.
“What do you call a lawyer who can’t make it in private practice?”
No, but if he had been sentenced to confinement he would likely have been dismissed from the Army with loss of all rank, pay and allowances to include his retired pay, without which he would have been destitute. It would have been impossible to have him sit in a federal prison as an officer, much less a lieutenant general.
Trump should drive the Obama 3.0 and GOP Swamp establishment nuts by pardoning Snowden and Assange too.
I believe there is a difference between a case being dismissed and/or thrown out – essentially acting as a not guilty finding. And a pardon, which alleges one in fact was guilty, but now pardoned from the underlying crime. Case dismissal would have been much more satisfying.
But at this 11th hour, it had to be a pardon. Just look at the way the case gets written up in the WSJ just a few days ago- Flynn guilty of lying to federal authorities. Democrats and the media were still ready to hang him.
The next two months of the Trump administration are going to be awesome. Lots of loose thread are going to get pulled and tied up in knots. And there is nothing more the Democrats can do about it. That is what will make it awesome.
Public revulsion against the Democrats and their now exposed agenda is reaching epic levels. Suggesting a teacher union boss for Secy Of Education shows how very out of touch they are – even in California people hate the teachers unions, because they know it was the teachers unions who refused to re-open the schools, which has been a terrible hardship on both parents and students.
Bring it on, Biden. Trump woke a sleeping giant. The voices of we the people. Trump had four years of a slug fest on his hands, but he taught people to shout it out when rights get trampled.
It should be noted that in order for the pardon to be effectual, it must be accepted by Flynn. He has the right to reject the pardon, and accept the decision of Judge Sullivan on the DoJ Motion to Dismiss.
The following language from Burdick v. United States, 236 U.S. 79 (1915) is of significant importance:
This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it.
A pardon carries an imputation of guilt. Granting of the pardon implies that Flynn is in fact guilty of the crimes for which the pardon was granted. One need only look at the result of the Sheriff Joe Arpaio pardon to understand the implication.
More importantly for Flynn, acceptance of the grant of pardon constitutes a confession of guilt. In effect another guilty plea. The pardon only excuses the punishment, not the crime.
If Flynn were to accept the pardon, my understanding is (I could be wrong, and I invite Mr. Willmann to correct me) that he would waive his rights against self-incrimination going forward. The only way he could raise his Fifth Amendment right against self incrimination would be to reject the pardon.
Am I right Mr. Willmann?
This is truly good news and I expect there will be more as the next 8 weeks play out and some of them will arouse a storm of self righteous vitriol from the “Wokesters”. I expect many of those pardons will be issued to decent police officers currently heading for show trials before leftist hanging judges.
Yes. And if he wants to blow the Borg out of the water, or at least start the process, he could declassify docs related to JFK, 9/11, Iraq war, hell the Gulf of Tonkin. Why not burn down the whole rotten mess the Borg has created?
Could the malevolent Judge Sullivan still be pressed to dismiss the case, or does a pardon end all further legal action?
In what legal situation is Flynn placed, with an official confession, albeit coerced, still half-standing (so that WSJ or anyone can continue to report his guilt, without fear of libel) and an unfulfilled instruction from Justice to dismiss the case? Does it affect his military standing or limit other future options?
Does this preclude Flynn suing the government for damages for malicious or negligent prosecution? Or whatever the appropriate complaint would be?
I hope he gives pardons to Snowden, Assange and Manning too before leaving office.
I always thought that Gen. Flynn was framed up because he knew too much.
As a former head of the DIA at a critical time, he had to have a good knowledge of things such as the Benghazi fiasco, and Hillary Clinton’s role in that.
Also, he pushed viewpoints about the situation in Syria as the islamic militants became central in the insurgency that were not popular with the powers that be. As you are quoted in Wikipedia on that point, Colonel Lang,
“Flynn incurred the wrath of the White House by insisting on telling the truth about Syria … they shoved him out. He wouldn’t shut up.”
Having him, with his no doubt intimate knowledge of these sorts of things, surfacing as National Security Advisor to President Trump, posed significant risks to people whose lives and careers are cocooned in impunity.
Basically, he had to be dealt with, but an Arkaancide (or an Epsteining), was not an option, so another means had to be found; lawfare fit the bill. And having an execrable creature such as Judge Sullivan positioned to run out the clock on appeals and/or writs of mandamus (as the corrupted process was gradually revealed) until a new, fraudulently appointed administration had him in their clutches, was a truly evil masterstroke.
I am glad that he is at last free.
I can hazard a guess, smoke, regarding your questions, but I would defer to Mr. Willmann should he disagree with my guesses.
Since the Motion to Dismiss was brought by the DoJ, unless it is withdrawn by the DoJ Judge Sullivan could still render a ruling. There is at least one good reason for him to do so. The question of the meaning of the phrase “with leave of court” contained in FRCrimP Rule 48(a) remains unclear, and a ruling from Judge Sullivan on that matter could provide some clarity going forward.
Flynn’s legal standing depends, as I wrote above, on whether he decides to accept the grant of pardon. Assume Judge Sullivan denies the Motion to Dismiss. He then schedules a sentencing hearing for Flynn. At that point, Flynn can notify the Court that he has been pardoned, and Judge Sullivan will be forever precluded from proceeding with sentencing.
Assume, on the other hand, that Flynn decides to reject the grant of pardon (stranger things have happened) and proceeds with sentencing. That would in all probability result in a sentence ranging from probation without confinement to six months in federal prison. See Col. Lang’s post above regarding the effects of a sentence of confinement.
Of course, Flynn could roll the dice and see if Judge Sullivan decides, against all odds, to grant the Motion to Dismiss and be done with the entire matter, a pox on both your houses. This is why I was actually surprised that the president granted the pardon while he still has 8 weeks in office.
Why not see what Judge Sullivan does? If Sullivan is waiting until the president leaves office, Trump can still pardon Flynn on January 19 and get the same result he got today. And if Sullivan decides the Motion to Dismiss before the end of December, the president could act or not act depending on the decision. And take a swipe at Sullivan on his way out if Sullivan denies the motion.
If Flynn accepts the grant of pardon, you are in error regarding any “coerced” confession. Accepting the grant of pardon constitutes a separate confession of guilt. See language I quoted above from Burdick v. United States. Simply put, by accepting the grant of pardon, Flynn confesses guilt, and anyone can publish that fact because it would be true.
Since acceptance of the grant of pardon would constitute a waiver of Flynn’s Fifth Amendment rights against self incrimination, I don’t think it would be wise for him to consider suing the Government for malicious prosecution. Since he could be prosecuted, or held in contempt, for refusing to testify after accepting the grant of pardon, he would open himself to extensive discovery should he try to sue the Government. Remember, nobody knows at this point why Flynn lied to Pence, or to the FBI. Nobody asked him. But if he sued the Government, Biden’s DoJ could surely ask him why, and he might have to tell everybody why he lied about something that he could have done anyway.
This is a good time for a pardon. Biden’s transition team either have or will be doing what Flynn was prosecuted for. That team can now in opposition to the pardon only really focus on Flynn’s pleading guilty. However, between cop shows and the experiences of many with the legal system (either themsevles or family/friends), I think most can understand that a plea bargain had been made which should never have been held against Flynn by the judge when DOJ sought dismissal.
With some questions asked here in mind. Another question. Does a President give a reason for giving the pardon? Would the reason given matter legally. Could Flynn based on that sue for his legal expenses, the troubles he and his family have been forced through?
Yes Jonathan Thurley may be a liberal as someone wrote. Barbara Ann? Short summary of the case. But as he argues, Flynn shouldn’t have been forced through this. He should never have been indicted as JT somehow suggests too.
He wrote this expecting a pardon:
President Donald Trump is reportedly considering a pardon for his former National Security Adviser Michael Flynn this week. …
That leads us to this pardon. The idea of Trump pardoning a former aide still sits badly with me. However, so does the conduct of his judge and the refusal to end this saga. There are no claims in the case that Flynn withheld criminal evidence against Trump. He was charged with lying about something that was not even a crime. We have a case where the prosecutors have declared that there is insufficient evidence for a charge but the judge refuses to let the defendant out of his courtroom after years of delay. Sullivan is continuing to hold on to a case that prosecutors have sought to dismiss since May. There is still no end in sight. That is why the only basis for a pardon in this case that is stronger than the conduct of defendant is the conduct of the judge in the bizarre case of United States v. Michael Flynn.
The presidential power of pardon is unlimited and a justification is unnecessary.
Chuck Light, there is another aspect to this, the fraud fight.
It looks like much of the Honey Bear’s resources are currently at work fighting election fraud, they just don’t have time for the legal work on Flynn as well.
I would say that there was a quiet meeting at which the best interests of the US were discussed and as those in it are patriots this is the result. Trump offers the pardon, Flynn bites the bullet and accepts and HB is released for the new cases. Not perfect for any of them but in reality they had no choice.
It seems to me that, unlike the Rudy team, the HB team is free from money from Trump and the Republican Party so is able to go for anyone, either side of the isle, who might have been involved in corrupt practices. She is fighting for the US electoral system, if it helps Trump that’s a bonus.
Michael Flynn speaks:
No comment is necessary or appropriate.
WSJ Kimberly Strassel’s excellent and sober column today re-capping the entire Flynn saga underscores we now are operating two parallel universes in the United States: us vs them, and there is no common meeting ground. This is cognitive dissonance. Dreams are disturbed. The world is turned upside down and backwards.
A line from Barbara Tuchman’s “A Proud Tower” exploration of the days leading up to WWI always haunted me. She claims therapists in the budding world of psychotherapy at that time ,foretold a cataclysm like WWI was pending, simply by the collective nature of their client’s dreams.
Strassel’s column is 180 degrees opposite the “other” version of the Flynn events, the side that is now begging to regain power. And the winner of this outcome will demand theirs is the only true version – which will be disturbing to either side. Depending on who prevails.
Carter Page is now suing in civil court – for $75 million in damages against all the usual deep state suspects we have come to know and love: https://twitchy.com/gregp-3534/2020/11/27/bam-carter-page-files-75-million-lawsuit-against-james-comey-andrew-mccabe-lisa-page-and-others/
Flynn has an extensive interview today, 12/9, with Maria Bartiromo:
This video includes Flynn’s last five minutes of comments, which some other videos omit.
In it he criticizes John Durham for taking so long in his investigation, and the Senate Judiciary Committee for doing so little.
He discusses both his situation and the 2020 election.
Margot Cleveland offers an extensive excoriation of Judge Sullivan’s 40-page memorandum opinion that closed, from his POV, the Flynn case:
Excerpts from her article:
“had Judge Sullivan followed the appropriate procedure—and the Constitution—
he would not have been able to vent for 40-some pages on his personal views about Flynn, Trump, and the Department of Justice.
Judge Sullivan had a lot to say, but all of it was slanted, some of it was false, and huge swaths of material facts were omitted.
Not only did Judge Sullivan ignore the overwhelming evidence of Flynn’s innocence,
he bypassed the evidence of government (and others’) misconduct:
Judge Sullivan completely ignored the strong evidence that Flynn’s prior attorneys provided ineffective assistance of counsel and acted under a non-waivable conflict of interest;
he gave no mention to the prosecution’s withholding of evidence in violation of his own standing order; and the special counsel’s improper threats to target Flynn’s son went ignored.
Flynn or the government or both must move to vacate the inappropriate advisory opinion, and here they have solid grounds to do so.”