Article II, Section 2, clause one, of the Constitution, dealing with the powers and duties of the President, provides that he or she “shall have the power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”


Former National Security Advisor Michael Flynn has entered into a plea agreement with Special Counsel Robert Mueller. That agreement requires the former head of the Defense Intelligence Agency and former military lieutenant general to provide information about any real or potential criminal wrongdoing against President Donald J. Trump, his family, his White House inner circle, and his former campaign staffers.


Very, Very, Very Bad


Michael Flynn not only knows which closet the skeletons are in but all their names, ranks, and serial numbers as well. Media outlets have already reported that the President upon learning about the Flynn plea deal said: “This is very, very, very bad.”


Yes, it is very bad for all those who may have colluded with the Russians to get Trump elected President of the United States for ulterior criminal motives, and for all those who have lied to the FBI, the Special Counsel’s Office, the grand jury, or congressional committees during the Trump/Putin-related investigations.


Michael Flynn knows the truth and at this juncture it is the truth that is the worst enemy of the President and all his associates. And Flynn is now legally bound to tell the truth about any criminal wrongdoing the President and/or any of his associates have engaged in during the Commander in Chief’s pursuit of the Oval Office and his short tenure in that office.


Presidential Pardon Enters Unchartered Territory


But can the President pardon Flynn to keep him quiet?


In 1866, the Supreme Court in Ex parte Garland ruled that the President’s power to pardon  “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”


This Dred Scott-like decision is the “law of the land.”


But Burdick v. United States, decided on January 25, 2015, is also “the law of the land.” In that case the Supreme Court said “a pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered, and if it be rejected, we have discovered no power in a court to force it on him.”


Offer and Acceptance


Put simply, Michael Flynn would have to accept a pardon by President Trump for it to be valid.


And therein lies a potentially serious problem for Flynn and constitutional crisis for the country.


The General has a statutory and constitutional contract with the Special Counsel’s through their mutually negotiated plea agreement. The Restatement (Second) of Contract § 1 (1981) said a “contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty.”


In 1971, the U.S. Supreme Court in Santobello v. New York recognized the constitutionality of plea bargaining. With that decision, the Court paid deference to the principles of contract law, particularly those principles involving mutually binding promises freely given in exchange for some valid consideration.


Breach of Plea Agreement


The federal courts of appeals have fairly interpreted Santobello to mean that if a criminal defendant breaches a plea agreement, the government retains the right to prosecute him or her for a greater charge.


Constitutional scholars make a strong argument that the President’s pardon power, under Garland, would wipe the slate clean, preventing the Government from re-filing greater charges against Flynn.


But such a pardon would not include one offense: obstruction of justice.


By accepting a presidential pardon that would effectively negate his plea deal, Michael Flynn could potentially be charged with obstructing justice. There are three general obstruction of justice laws:


  • Obstruction of judicial proceedings (18 U.S.C. 1503);
  • Witness tampering (18 U.S.C. 1512); and
  • Obstruction of congressional or administrative proceedings (18 U.S.C. § 1505);


Flynn would more than likely be charged under § 1503 which entails four methods of obstruction—three of which apply to interfering with federal jurors or court officials while the fourth, its omnibus provision, applies specifically to interference with the “due administration of justice.”


Flynn’s acceptance of a Trump pardon could constitute obstruction of the “due administration of justice” omnibus provision of § 1503. The President’s pardon of Flynn would not cover this obstruction of justice offense because it is the acceptance of the pardon itself that constitutes the obstruction offense; in other words, a pardon cannot pardon the crime of pardon.


Obstruction of Justice


The federal courts have often observed that to convict under the omnibus provision of § 1503 the government must prove beyond a reasonable doubt: 1) that there was a pending judicial proceeding; 2) that the defendant knew this proceeding was pending; and 3) that the defendant then corruptly endeavored to influence, obstruct, or impede the due administration of justice.


Under several foreseeable theories, the Special Counsel could establish these elements against Flynn.


By extending a pardon to Flynn, President Trump would also be clearly obstructing the due administration of justice. The question about whether a sitting president can be charged with a criminal offense remains a constitutionally murky issue.


But what is not murky is that Flynn, upon acceptance of a criminal pardon, could be charged with obstruction of justice because the very purpose of the pardon would be to interfere with the due administration of justice that his negotiated plea agreement is designed to achieve.