As expected, Donald Trump just announced a “full pardon” for Michael Flynn. Keep in mind that pardons are not magic wands for Trump. There are three ways in which this could blow back on Flynn and land him in prison anyway, and one way it could actually help send Trump to prison.
First, Flynn dodged several more serious criminal charges when he cut his cooperating plea deal on a lesser charge. Flynn went on to violate his plea deal, meaning prosecutors can now hit him with those more serious charges. Trump can try to word his pardon to include any and all crimes that Flynn hasn’t yet been charged with, but that’ll be legally flimsy, and prosecutors can challenge it in court. So Flynn could end up with more prison time than the zero to six months he was facing.
Second, because there is no clear precedent for a President being able to pardon his own criminal co-conspirators, prosecutors can try to get the entire pardon thrown out in court. This would in turn set the precedent to invalidate every pardon that Trump tries to issue to a co-conspirator. In fact Judge Sullivan, who’s handling the current Flynn case, and simply issue the opinion that this pardon is unlawful, sentence Flynn to prison, and dare him to appeal.
Third, depending on the nature of his other crimes and the states he committed them in, Flynn could be subject to state level criminal charges.
Now here’s the part where this gets ugly for Trump. If Flynn’s pardon holds up and he does skate entirely, then he’ll no longer face any criminal jeopardy. In such case the Fifth Amendment will no longer apply, and Flynn will then be required to testify against Trump. That’s right, this pardon could help put Trump in prison.
If Flynn refuses to testify against Trump, he can then be charged with felony obstruction – and Trump’s pardon certainly won’t apply to any crimes that Flynn commits after the pardon. The bottom line: Flynn probably ends up in prison one way or the other anyway, and Trump is now more of a lock for prison than ever.
Pardoning his co-conspirators is not a good option for Donald Trump. It opens up all kinds of problems for him. It’s just that it’s the only move he has left when it comes to trying to keep his co-conspirators from cutting plea deals against him. Don’t let anyone portray Trump’s pardons as magic wands. They’re treasonous, but they’re not all that effective.
Bill Palmer is the publisher of the political news outlet Palmer Report