Now that Michael Flynn has signaled he’s negotiating a plea deal with Special Counsel Robert Mueller, two big questions have emerged. First, why didn’t Donald Trump preemptively pardon Flynn in order to prevent him from cutting a deal? Second, why didn’t Flynn hold out longer for a pardon, rather than negotiating a deal behind Trump’s back? Now a former federal prosecutor is explaining how Mueller effectively blocked Trump from being able to pardon Flynn.
Renato Mariotti, a former federal prosecutor who is now running for Attorney General of Illinois, has explained in detail how these kinds of situations work. He points out that “Flynn does not expect Trump to pardon him or his son, or he believes that him or his son could be convicted of unpardonable state offenses.” So why did Trump decide not to pardon Flynn, and why did Flynn conclude that the pardon wasn’t coming? Mariotti explains that “a pardon of Flynn could be used by Mueller as evidence of Trump’s ‘corrupt intent’ to prove obstruction, because it could indicate Trump’s strong desire to relieve Flynn of criminal liability. A Manafort pardon wouldn’t impact an obstruction case.” (link).
In other words, if Trump did pardon Flynn, it would serve to greatly increase the odds that Mueller can ultimately nail Trump for obstruction of justice. Thus Trump faced a no-win situation. By not pardoning Flynn, Trump is now vulnerable to whatever testimony and evidence Flynn serves up against him. But if he had pardoned Flynn, he would have been legally vulnerable in a different way.
All along, Robert Mueller has been setting up no-win situations for the various players in the Trump-Russia scandal. He pursued state level charges against Paul Manafort that Donald Trump couldn’t pardon. He targeted Michael Flynn’s son in order to get Flynn to decide to flip. And now he’s backed Trump into a corner where he ultimately couldn’t get away with pardoning Flynn either.
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