Outgoing President Donald Trump probably launched the first grace of his teammates ’grace series last week with the grace of former National Security Consultant Michael Flynn.
Flynn pleaded guilty to making false allegations to investigators back in 2017 – but Trump didn’t just pardon him for that.
A typical way of working for grace is to pardon the recipient for certain crimes. But Flynn stands out because he also has precautionary considerations — that is, it is written in broad strokes to try to pardon Flynn for possible crimes he has not even been charged with.
Preventive grace is not unprecedented, but unusual, and comes much closer to a kind of presidential statement that the president’s comrades must be above the law. And Trump’s tactics point to Flynn as to how far he can go in the final weeks of his office.
Most of Trump’s former campaign advisers – Steve Bannon, Paul Manafort and Roger Stone – have been charged or convicted of specific crimes for which he can be pardoned. (Trump has already commuted Roger Stone’s sentence, but has not yet given him full pardon.)
However, the universe of potential preventive graces is much broader. While many of Trump’s staff have been charged with crimes, even more have been investigated but not charged.
For example, there is the president’s lawyer, Rudy Giuliani. The New York Times reported Maggie Haberman and Michael Schmidt on Tuesday morning that “last week” Giuliani discussed Trump’s “possibility of receiving preventive grace” (although Giuliani denied this on Twitter). New York federal prosecutors investigated Giuliani’s business and indicted two of his associates.
And some of Trump’s allies are encouraging them to take even more preventive grace. “I would tell President Trump to pardon himself and his family,” Fox presenter Sean Hannity said Monday. It is not yet clear whether Trump is trying to go that far (especially that self-pardon cannot be legal and the president cannot pardon state crimes), but it is clear enough that lame duck grace shenanigans are just beginning.
Flynn’s grace is very broad, and much of it is preemptive
In December 2017, Michael Flynn, a former national security adviser to Trump, pleaded guilty to making false allegations (lying to the FBI about his conversations with the Russian ambassador). Since then, his case has become that protracted legal saga – Flynn first tried to withdraw his plea, then a team from the new Ministry of Justice sought to drop the case against Flynn, and the judge of the case, Emmet Sullivan, is considering whether to allow this last step.
Last week, Trump announced that he had pardoned Flynn, but no documentation was released until Monday night to clarify the parameters. It looks like this:
Grace begins by listing the crime in which Flynn pleaded guilty: he made false statements before federal investigators. But it goes much further. Flynn is also pardoned:
- “Any and all possible crimes that are included in the indictments in his case” (Flynn admitted to making false allegations in his submissions to the Foreign Agents Registration Act regarding his work with the Turkish government)
- any offense that “may arise or be prosecuted, alleged or enforced in connection with the proceedings” (for example, there was a debate as to whether Flynn could be charged with perjury by admitting his guilt under oath in court and then changing direction)
- Special Adviser Robert Mueller “any and all possible crimes before or under the investigating authority” and “any and all possible crimes arising from facts and circumstances that are known, identified or in any way related to Mueller’s investigation (i.e., if Mueller has any found something else that could be prosecuted against Flynn, the grace is meant to cover this)
So this is not a typical pardon, it is aimed at crimes that have actually been accused or convicted of someone. It is a preventive grace designed to protect Flynn from future prosecution.
In this respect, it is similar to the unconditional preventive pardon that President Gerald Ford awarded to his former boss and predecessor, Richard Nixon – an overwhelming pardon for all the crimes he committed during Nixon’s presidency.
Flynn’s pardon is not quite as broad as this, but it is clearly tailored to try to rule out the possibility that Flynn will face further charges in connection with the case against him or be involved in any way in the Mueller investigation.
Will Trump issue another preventive grace?
The New York Times has already confirmed that this is a preventive grace – for Giuliani.
Late last year, news arrived that federal prosecutors from the U.S. Southern District Attorney in New York (SDNY) were investigating Giuliani’s business and finances, uncovering links with former top Ukrainian officials, and investigating a number of potential crimes (including obstacles). justice, money laundering, serving as an unregistered agent of a foreign government, postal fraud and electronic fraud).
Giuliani’s two staff members, Lev Parnas and Igor Fruman, were indicted for violating campaign finance in October. The couple allegedly helped Giuliani establish contacts with Ukrainian officials who allegedly knew of scandalous information about the Biden family that could be useful to Trump. (The revelation of Trump and Giuliani’s efforts to get Ukrainian officials contaminated in Biden eventually resulted in Trump being held accountable.)
There have been few new developments in the case this year. CNN reported that the investigation against Giuliani was “supported by the coronavirus epidemic, which limited prosecutors’ ability to hear witnesses, gather additional evidence, and meet the grand jury.” Giulian has not been charged, but if this investigation is serious and still ongoing, he is obviously hoping for mercy while his client is still in charge of the executive.
There was some debate – at least on the part of Sean Hannity – about the graces before the members of the Trump family.
Trump’s son, Donald Trump Jr., faced control during the Mueller investigation, but was ultimately not charged. Trump himself was also brought to justice for obstructing justice, but Mueller chose not to accuse him, in part because Trump was president.
President Trump may attempt his pardon, but it is unclear whether this would be lawful (according to a theory popular with #Resistance, Trump will soon resign and allow the newly installed president, Mike Pence, to grant him pardon). One issue here, however, is that the president has no power to pardon state crimes – and is currently being investigated for banking and insurance fraud in New York State.
If Trump really plans to run in the presidential election again in 2024, there may be political reasons for holding back the broadest claim of his power of grace. Then again, you may feel that you have properly laid the groundwork for defending these movements by underestimating your own or those close to you investigating them as “witch-hunts”. It is only so clear now that his graces are just beginning.
Some who want grace support Trump’s “stolen election” lies
Finally, there is a remarkable pattern among those who are likely to ask for mercy: they tended to support Trump’s lies and conspiracy theories that the 2020 election was stolen from him.
Giuliani, of course, led Trump’s post-election legal struggle, spreading false allegations of widespread voter fraud while allegedly seeking preventive pardon.
Attorney Sidney Powell – Flynn’s attorney – spoke at a press conference with Giuliani two weeks ago, with particularly strange fraud claims. (He claimed that the Dominion voting system company had won the vote against Trump, in part because it contained “communist money” and that the company was linked to the late Venezuelan dictator Hugo Chávez.) Powell filed a lawsuit and were similarly fake. demands. (Flynn himself said, “I have no doubt in my head,” that Trump won in a “landslide.”)
Bannon also spreads false information that contributes to Trump’s stolen election narrative and advised Giulian behind the scenes, the Washington Post writes.
Whether or not there was an express quid pro quo in it, it is clear that all of these people were interested in graces (in the case of Powell to his client) and that these people knew the importance of bringing pleasure to the man who could grant grace. . In fact, the main champions of Trump’s post-election fraud lies were those who wanted Trump to give grace to someone – which reveals how much bad faith plays a role here.