Saturday, November 28, 2020

As Lame Duck, Trump Flexes His Pardon Power

          Lame-duck presidents naturally issue a flurry of presidential pardons as they are about to leave office, but President Trump put a distinctively dishonorable touch on the practice last week [Nov. 27] by pardoning his former national security adviser, Lt. Gen. Michael Flynn, for lying to the FBI during the special counsel’s investigation of Russian interference in the 2016 election.

Flynn became the second of Trump’s former associates to benefit from an act of supposed clemency that Trump used instead to portray the Russia investigation as a witch-hunt and a hoax. Trump went so far in announcing the pardon on the Wednesday before Thanksgiving as to say that it was his “Great Honor” to announce that Flynn “has been granted a full pardon.”

Four months earlier, Trump had commuted the 40-month prison sentence that his longtime political associate Roger Stone had been given for lying to Congress during the Russia investigation. Trump announced that decision on Friday, July 10, in a statement that denounced “overzealous prosecutors” for convicting Stone of charges stemming from what he called “the witch hunts” and the “Russia hoax” investigation.

Democrats in Congress criticized both of Trump’s actions as a misuse of the presidential pardon power aimed mostly at insulating the president himself from further investigations. “No other president has exercised the clemency power for such a patently personal and self-serving purpose,” House committee chairs Jerrold Nadler and Carolyn Maloney declared in a joint statement after the Stone commutation.

The House Intelligence Committee chairman, Adam Schiff, took a similar view of the Flynn pardon last week, calling it a “corruption” of the presidential pardon power. “It’s no surprise that Trump would go out just as he came in—crooked to the end,” Schiff said in a lengthy statement. Schiff had led the House investigation that resulted in impeaching Trump for abuse of office and eventually acquittal by the Republican-majority Senate.

The Constitution gives the president “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment” (Art. II., sec. 2). The exception for cases of impeachment suggests at least that the Framers did not regard presidential pardons as appropriate in politically charged cases.

With that exception, the Framers gave the president virtually complete discretion in exercising what Alexander Hamilton, in Federalist No. 74, described as “a benign prerogative” needed as “a mitigation of the rigor of the law.” Hamilton argued against any need for legislative assent to a pardon on the ground that the power was “better fitted” to “a single man of prudence and good sense.”

Even before Trump’s actions, Attorney General William Barr had taken controversial steps to blunt the prosecutions against Stone and Flynn. In Stone’s case, Barr overrode recommendations from career prosecutors that Stone be sentenced to seven to nine years in prison and instead directed prosecutors to argue for the lesser 40-month sentence. In Flynn’s case, Barr initiated a virtually unprecedented move to dismiss the case even though Flynn had pleaded guilty to the offense.

The department’s motion in Flynn’s case was still pending before U.S. District Court Judge Emmet Sullivan when Trump announced the pardon. A Justice Department spokesman disclosed that the White House had advised the department of the pardon in advance, but added that the department would have preferred for the matter to have been resolved in court.

Flynn had been designated as Trump’s national security adviser after the 2016 election. He lied to investigators about a telephone conversation with the Russian ambassador, Sergey Kislyak, in which he urged Moscow to avoid any aggressive response to new sanctions announced by President Obama due to take effect on December 29, 2016. Questioned about the call three weeks later, Flynn told FBI agents that he did not remember discussing sanctions in the conversation.

Flynn resigned from the position in February 2017 after news reports of the apparent discrepancy in his accounts of the conversation with the Russian ambassador. Trump urged the then director of the FBI, James Comey, to go easy on Flynn, but the investigation resulted in an eventual guilty plea before Judge Sullivan in December 2017.

In all, six Trump associates were convicted of or charged with crimes as a result of the Russia investigation headed by special counsel Robert Mueller. With the Flynn pardon, speculation has been widespread that Trump is considering pardons for some of the others, including Paul Manafort, his former campaign chairman, who was convicted of bank and tax fraud in connection with his work on behalf of the pro-Russian Ukrainian government.

            Manafort was sentenced in March 2019 to 47 months in prison, but he was released in May 2020 because of the coronavirus pandemic. Rick Gates, Manafort’s associate and another Trump campaign aide, was convicted of similar charges and sentenced in December 2019 to 45 days in jail.

            The speculation about other possible pardons has prompted vigorous legal debate in legal circles on the question of whether Trump could pardon himself for any federal offenses committed while or before serving as president. In his post-presidential life, Trump also faces the possibility of financial fraud charges stemming from an investigation by the New York City district attorney’s office. The presidential pardon power extends only to federal offenses and thus Trump would remain in legal jeopardy to state charges after leaving the White House.

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