When Donald Trump issued a preemptive pardon for all current and potential criminal charges against Michael Flynn, Palmer Report explained that it wasn’t some kind of magic wand. Preemptive pardons are legally flimsy – and with as many of them as Trump seems intent on handing out, it’s a matter of time before the concept gets challenged in court.
We further pointed out that because Michael Flynn’s case happens to be before Judge Emmet Sullivan, who has already gone to great lengths this year to fend off Bill Barr’s attempt at sabotaging the case, there was a decent chance that Sullivan would decide to set the precedent on preemptive pardons himself.
Now another federal Judge, Reggie Walton, is publicly giving Judge Sullivan cover for precisely doing that. Walton suggested in court on Friday that while Sullivan can’t override the pardon for the one charge that Flynn has already faced, Sullivan could issue an opinion that the pardon is “too broad” and that it doesn’t apply to future prosecutions against Flynn.
If Sullivan follows Walton’s suggestion, he’ll be directly inviting the post-Trump DOJ to bring additional criminal charges against Michael Flynn. That won’t be difficult to do, as Flynn managed to avoid serious charges with his cooperating plea deal, which he then reneged on. If the DOJ charges Flynn with new crimes, Flynn’s lawyers will argue that the charges should be thrown out due to the pardons. But Sullivan’s ruling would be established precedent, and the courts could have a hard time overturning him.
This has to be seen as a blow to Michael Flynn’s chances of remaining out of prison. Based on how he’d handled things up to this point, we suspected that Sullivan might do something like this, and now he has a fellow federal judge giving him cover to do it. It’s also potentially a blow to Donald Trump’s entire preemptive pardon scheme, because if Flynn’s preemptive pardon fails, then the preemptive pardons for Trump and his family would also fail. We still have see to what Sullivan does next and where this goes, but the first blow to Trump’s pardon scheme has now been struck.
Bill Palmer is the publisher of the political news outlet Palmer Report