Former National Security Advisor Michael Flynn has pled guilty in a Washington, D.C. federal court to a single count of lying to the FBI. The guilty plea is part of a “plea agreement” reached with Special Counsel Robert Mueller who is currently investigating possible political collusion and criminal wrongdoing between the Russian government and the Donald Trump presidential campaign. This criminal investigation includes possible obstruction of justice by President Trump and other possible criminal wrongdoing by his family members and political associates before the president’s election and during his tenure in office.
Federal Rule of Criminal Procedure 11(e) not only recognizes but regulates plea agreements between the Government and a criminal defendant. The plea agreement Flynn entered into with the Special Counsel imposes four contractual obligations on him:
- He must answer all questions by the Special Counsel and any Federal, state, or local law enforcement authorities as designated by the Special Counsel;
- He must provide sworn written statements at the direction of the Special Counsel;
- He must undergo Government-administered polygraph examinations at the discretion and direction of the Special Counsel; and
- He must participate in covert law enforcement activities at the discretion and direction of the Special Counsel.
Flynn Cooperation Agreement Extends to State Investigations
These obligations attach not only to the Special Counsel’s Trump/Russian collusion investigation but to any other Federal, state, and local law enforcement investigations. This means that if the Mueller investigation were somehow thwarted, as a significant number of Trump’s Republican supporters are trying to do, Flynn would have a binding obligation to cooperate with any collateral or independent investigations being conducted by state authorities, such as the New York Attorney General’s Office.
President Trump recently indicated that he will address the issue of whether to pardon Flynn at the appropriate time. This has fueled speculation that the president will pardon Flynn to keep him quiet about any possible criminal wrongdoing committed by the president, his family, and/or political associates. The President has yet to announce how he will suppress Flynn’s testimony once a pardon is granted, which would eliminate the threat of prosecution and prevent Flynn from exercising his Fifth Amendment rights.
Would Presidential Pardon Amount to Obstruction?
Some prominent legal scholars, like Duke University law professor Lisa Kern Griffin and Georgetown law professor Julie O’Sullivan, believe that such a pardon by the president would amount to obstruction of justice. While the president enjoys virtual unfettered discretion in the executive clemency process, he is not above the rule of the law and thus cannot issue a pardon to impede a criminal investigation into possible wrongdoing he has engaged in.
This president, however, believes he is the rule of law unto himself. In one of his irrational and incomprehensible moments (and Trump experiences these moments on a regular basis), the president may decide to pardon Flynn. But, to be effective Flynn must accept the pardon. There are at least five reasons why he should refuse to accept a presidential pardon.
Reasons Flynn Should Reject Offer of Pardon
First, the disgraced former intelligence officer would lose his Fifth Amendment protection against self-incrimination. He could be brought before a federal grand jury and compelled to give testimony not only against himself but others as well, including his son. He could not “plead the Fifth” because the pardon would have removed any exposure to federal criminal liability. Worse yet, he could be compelled to confirm and authenticate any evidence he has already provided the Special Counsel and to any law enforcement officials about possible criminal wrongdoing by the president or anyone else associated with the president.
Second, a federal pardon would not remove any state criminal liability exposure Flynn may face, such as money laundering in New York or conspiracy the kidnap the Turkish cleric in Pennsylvania. And all the evidence, testimony, and documents he has already provided to the Special Counsel or to any law enforcement authorities could be used to indict and prosecute him in state court on these charges which are beyond the reach of the president’s pardoning power.
Third, the U.S. Supreme Court in Carlesi v. New York ruled that a federal pardon does not preclude a state court from using the pardoned offense to enhance a defendant’s state sentence, Thus, any sentence exposure for a state court conviction could be enhanced by Trump’s pardon.
Fourth, in two modern pardon cases (In re North and In re Abrams) the D.C. Circuit Court of Appeals has ruled that a federal pardon does not preclude a court or some other entity from using the pardoned offense to the disadvantage of the pardoned individual.
Fifth, a federal pardon does not obliterate either the fact of conviction or the fact of guilt. As the U.S. Justice Department put it, “A pardon … does not erase the conviction as a historical fact or justify the fiction the pardoned individual did not engage in criminal conduct. A pardon, therefore, does not by its own force expunge judicial or administrative records of the conviction or underlying offense.”
Thus, regardless of whether Trump decides to pardon Flynn, the former National Security Advisor will remain a disgraced convicted felon because of his guilty plea. More to the point, he will become the primary target of the inevitable public and legal backlash against any pardon by Trump. He will be seen as a corrupt, criminal co-conspirator in obstructing justice and could potentially be charged with that subsequently committed offense. Flynn will also remain at jeopardy of state criminal charges and convictions.
Flynn’s Reputation Can Yet be Salvaged
The professional and personal landscape in Gen. Michael Flynn’s life can at least be salvaged to great measure by rejecting any pardon extended by President Donald Trump and continuing his cooperation with federal and state authorities into the criminal wrongdoing that quite possibly is the underpinnings of the Trump presidency.
Michael Flynn may very well have the opportunity to place country before the president.