Trump Pardons an Undisclosed Agent of Turkey Along with a Thanksgiving Bird

Update: Trump has indeed pardoned the Agent of Turkey along with a farmyard turkey.

The significance of this, however, will depend on the wording of the pardon. 

At least three outlets (CNN, Axios, NYT) have reported the entirely unsurprising news that Trump is considering pardoning admitted liar and undisclosed Agent of Turkey, Mike Flynn. Only the NYT provides a reasonable account of what has happened since DOJ moved to dismiss the case, and only after repeating Trump’s false claims about the investigation.

None of the outlets reviewed how complex successfully pardoning Flynn will be, without making Trump’s — or Flynn’s son’s — fate worse. That’s true because the posture of the Flynn case before Judge Emmet Sullivan is such that Sullivan has multiple possible options for holding Flynn accountable, depending on when Sullivan moves and when Trump does.

If Trump pardoned Flynn for the crimes to which Flynn pled guilty, false statements, today, a Foreign Agent of Turkey pardoned right alongside a Thanksgiving turkey — then DOJ’s motion to dismiss the prosecution for Flynn’s false statements charges would likely be mooted. But there’s still a pending motion to withdraw Flynn’s plea before Judge Sullivan, which by itself mooted DOJ’s promises not to prosecute Flynn for hiding that he was working for the government of Turkey rather than just a foreign business in a FARA filing in March 2017. Plus, when Flynn pled, it was understood that would end the investigation, but given that he reneged on his plea, there’s nothing stopping DOJ from investigating Mike Jr for his involvement with Turkey, if Flynn were pardoned.

So to get Flynn out of immediate legal jeopardy, Trump would need to pardon Flynn for crimes to which he pled guilty — the false statements to hide Trump’s involvement in “colluding” with Russian to undermine US policy — but also the crime to which Flynn didn’t plead guilty, hiding that he was an Agent of Turkey while getting classified briefings during the 2016 campaign. That’s all the more true given that DOJ’s appeal of the Bijan Kian case is still unresolved (it is scheduled for oral argument on December 11), and trying Kian along with Mike Flynn, charged as a co-conspirator, would eliminate many of the legal difficulties from the first trial.

Trump might even have to pardon Flynn Jr.

But that’s still not adequate. Flynn made multiple materially conflicting statements before Judge Sullivan and the grand jury. When directing amicus John Gleeson on what he should consider, Sullivan asked whether he should hold Flynn in contempt. Gleeson said that, instead, he should consider those additional lies when sentencing him on the charged crimes. DOJ argued that Sullivan should, instead, refer the charges to DOJ. Even if Sullivan referred those charges today and Bill Barr declined prosecution (as DOJ made clear in hearings they would), Biden’s DOJ could reopen the case. So to get Flynn out of trouble for his efforts to blow up his own prosecution, Trump would have to pardon those crimes as well. But if Trump pardoned Flynn today, Sullivan could wait and ultimately hold Flynn in contempt; while Trump succeeded in freeing Joe Arpaio of criminal contempt with a pardon, it’s not clear whether that could work preemptively.

Assuming Trump does pardon Flynn for some or all of these crimes, it would add several overt actions to obstruction charges against himself. So unless he’s sure that Mike Pence would give him a last minute pardon (or certain that his own self-pardon would withstand legal review), then pardoning all Flynn’s crimes would pile up his own exposure.

Then, if Trump does pardon Flynn, it will surely become a matter for a hearing before one or the other of the Judiciary Committees into Trump’s abuse of the pardon power. Flynn will have no Fifth Amendment privilege and Biden’s DOJ will have the ability to enforce contempt motions from Congress. As I have noted, in the process of attempting to blow up Flynn’s prosecution, Ric Grenell and Sidney Powell and DOJ have released documents that will make it far harder for Mike Flynn to sustain his claim not to remember what Trump’s involvement in the “collusion” with Russia was. Public testimony (or even depositions run by staffers) might elicit evidence that would subject Trump himself to conspiracy charges or might result in new false statements charges.

Finally, there’s the matter of the documents that got altered as part of DOJ’s effort to blow up Flynn’s prosecution. There, Flynn is probably totally safe from legal jeopardy. But the lawyers might not be, at least at DOJ and possibly including Sidney Powell and Jenna Ellis. Importantly, at the time of that effort, there was no conceivable privilege protecting discussions between Flynn’s defense attorney and Trump’s campaign lawyer, nor between Powell and Trump. Since then, Powell’s involvement in Trump’s attempts to lie about the election have been contested (and Trump and Powell could both face consequences for their lies on that front). So Trump’s decision to pardon Flynn now after being told by Powell before September that Flynn didn’t want a pardon would raise questions about its tie to the election.

Don’t get me wrong: The pardon power is awesome, and assuming a competent lawyer like Pat Cipollone is involved in the process, Trump might manage to negotiate all these risks and successfully ensure that Flynn does no prison time for his crimes. But this is the kind of complexity that Trump will face as he tries to pay off those who protected him.

148 replies
  1. joel fisher says:

    Too bad you didn’t have a sentence to commute; but have it your way: OK, General get ready for the subpoenas. There are just a few questions we’d like to ask.

    • emptywheel says:

      Exactly. In numerous ways Trump’s attempts to fuck the Russian investigation may backfire.

      And of course Flynn would be done with probation had he not gotten cute.

      • joel fisher says:

        I’m thinking that a pardon that leaves just a small area of criminal activity unpardoned–just enough to arguably preserve 5th amendment privilege–might be too clever by half. Such a pardon, especially if discussed with the recipient, might, itself, be criminal.

    • bmaz says:

      Yeah, that is the dirty little secret about a rash of pardons for people close to Trump – It may be good for their federal criminal liability, but it may not help Trump at all. Also, most of them will probably lie when and if questioned after pardon, and the pardon will not cover that.

      • emptywheel says:

        And given that Flynn has sworn statements that already conflict, any new sworn statement would necessarily conflict with one of his existing sworn statements.

        • bmaz says:

          Exactly. And once Barr is gone, DOJ line level types may have a few bones to pick with Flynn. Will be interesting to see if that is the case.

        • Chris.EL says:

          this Twitter thread points out Trump pardoning Flynn to obscure Trump’s criminal acts may be a criminal act.

          [ “Andrew C Laufer, Esq
          So it appears Trump may attempt to pardon Flynn. ” … more pages ]

          Would this hold if Pence is assigned by Trump to do the pardoning for Trump and Flynn?

          Seems it may serve to pull Pence in as a co-conspirator! Ha!

          Or, Pence could say, yeah sure, I’ll pardon you dude! Trump resigns, expecting the pardon, but it doesn’t happen! Ha!

          Best burn in history! Trump deserves only the best.

        • e.a.f. says:

          omg, just the thought of that………yikes. Pence’s get even moment.
          first thought, never going to happen.
          second thought, well it might clear the way for Pence to have a run at the Presidency…….

          you couldn’t make this stuff up, o.k. there were a couple of t.v. shows, but to see it all in real life, just so thankful Biden/Harris won. My stress level dropped by about 20 points. I think its when you have a 100 points you get to have the nervous breakdown.

        • Alan Charbonneau says:

          I actually hope that happens. “Sure, Donny I promise to pardon you!” followed by Pence not taking Trump’s frantic calls as inauguration time approaches.

          It won’t happen, but it’s fun to think about.

        • Desider says:

          Barr gone? I though his replacement would keep him around to beat him like a piñata. What can he be charged with?

      • Mulder says:

        This would seem to require a lawyer(s) capable of tiptoeing through a minefield to avoid blowing up the client. Or maybe the lawyer is guiding the client in the minefield, “Take two giant steps forward but not too giant!”

        • bmaz says:

          Yes. There are potentially an incalculable number of landmines. And, if the government wants to get aggressive (not sure they will), I am not sure all those landmines can be avoided, irrespective of good lawyering.

        • Pete T says:

          In my best WOPR voice and to borrow from an EW post title: Would you like to play a game of global thermonuclear Jenga?

        • BobCon says:

          It is also possible that even if the government wants to avoid stepping on the gas, events may take over.

          There may be whistleblowers who have been waiting until January to step forward, there may be routine audits which reveal damaging information which has to be revealed, it’s possible Trump may just tweet out something in an unguarded moment which triggers an investigation.

      • Fraud Guy says:

        And noted legal scholar Matt Gaetz says Trump should pardon everyone, apparently to let god sort them out.

        Of course, if Trump issues a general pardon to everyone in the US for all federal crimes, that should cover everyone implicated in his activities.

        • earlofhuntingdon says:

          An expansion, perhaps, of the Ford and Carter pardons:

          “…a full, free, complete, absolute, and unconditional pardon unto everyone who worked for me or on my behalf, or who may have worked for me or on my behalf, whether paid or unpaid, for all offenses against the United States which he, she, they or it has committed or may have committed or taken part in on or before January 20, 2021.”

        • earlofhuntingdon says:

          I should have added to the list of pardonees: “or for my campaign or any of its affiliated entities, or for their contractors or service providers, and for any person who donated or may have donated anything of value to any of the foregoing.”

        • Desider says:

          Let’s make it simple: “I pardon everyone except Hillary. And Comey. And Mueller. And most of all Obama.”

        • Epinnoia says:

          Oh yea, you want him to pardon not only crimes committed but crimes yet to be committed. Someone could make a move against Biden and, since it is ‘work for or on my behalf’, you think it should be covered.

          Sorry, but I don’t think preznits get to dish out free tickets to commit future crimes as pardons.

        • earlofhuntingdon says:

          There’s also the karmic consequence that if Mike Flynn is embroiled in these proceedings, he will too hot to hire for anything but cook or dog catcher, barring the Ollie North-like speaking tours and Faux Noise gigs. Those may dry up, too, as the movement seeks, however successfully, to move beyond Trump.

        • Epinnoia says:

          Why would criminals want to re-hire a fellow criminal who got caught? Surely not for the same kind of work in the future. Not after he’s already proved incompetent, and dragged dRUmpf into this imbroglio.

  2. DannyBurntMusic says:

    (Note: Using an augmented screen name on this comment at the request of bmaz)

    Important post EW — I hope other jurnos are listening.

    I can’t shake this sinking feeling that Biden’s DOJ will not do the necessary but difficult task of holding Trumpf and his enablers accountable. Will his AG pick give us any hints? Anyone have a clue who might be up to the task of leading DOJ into doing the right thing and not be circumspect in the face of glaring criminality?

    Seems to me that “reconciliation” without “truth” will normalize all the corruption and even encourage its repetition in the future.

    • bmaz says:

      Thank you! Actually I have thought about this a little (and talked to the original Burnt, who is a friend), BurntMusic is probably sufficiently differentiated from Burnt. Unless we start seeing confusion, feel free to use your original BurntMusic.

    • BobCon says:

      I am assuming that not only will Biden stay out of any investigation of Trump, but the new AG will largely wall themselves off too.

      It is going to drive a lot of superficial and impatient people crazy.

      • DannyBurntMusic says:

        I can see how my comment may have appeared to advocate for Biden or new AG to push for investigations into Trump and his enablers, but that’s definitely not what I’m saying. Quite the contrary, since Trump’s disgusting insistence that the AG/DOJ should do his bidding and act as his personal legal lap dog is abhorrent to even the most basic concepts of justice. The independence is key.

        I’m simply wondering aloud if the DOJ, under new leadership, will dutifully follow the trail of evidence to ensure that any crimes committed will be brought to light… or if the instructions will be to “look forward”.

        I hear ya BobCon, and will (try to) be patient. Thx.

        (Thanks bmaz for the screen name clarification. Will stick with this one from here on out)

        • BobCon says:

          Sorry if that came across as particularized when I was trying to be a lot more general.

          I think Biden is likely to name pros at DOJ, and while I don’t think politics can ever be removed from decisions, my opinion is they won’t be dodging evidence of criminal behavior.

          I am just feeling really frustrated by things I am reading outside of here where people are assuming they know what evidence is out there when they are saying what Biden and his DOJ should or should not do.

          Jill Lepore saying we should let history judge, Randall Eliason saying Biden should go easy, and more — we don’t know what the next six months will reveal. Nobody could have predicted two years ago that a Ukraine scheme would blow up like it did while Trump held the reins of power. What emerges when he is no longer in control? Maybe nothing, but we don’t know.

        • Raven Eye says:

          DOJ is going to need a departmental clearing house just to collect, sort, and prioritize the in-house stuff that rises from the swamp. And then there is the rest of the federal system to consider.

          At this point in time it would be silly to come to conclusions regarding what any of the primary players in the Biden administration (including Biden himself) could or should do.

          Trump and fellow travelers leaned on the plunger, but the blubber is still falling from the sky, and we don’t know if the big piece has hit the new Cadillac yet..

        • Spencer Dawkins says:

          If I’m tracking the purge of Inspectors General at pretty much every significant federal agency (usually five minutes after they testified to Congress), and their replacements by semi-qualified or unqualified partisans, ISTM that Job One is to hire the kind of Inspectors General at those agencies who actually believe in oversight, justice, and the missions of their own agencies.

          Rather than, you know, believe in Trump.

        • earlofhuntingdon says:

          The “go easy” crowd is painfully wrong. Justice doesn’t just happen, it takes work. As with being fair and impartial, it’s important to do it and to be seen to do it.

          Look forward, not back is a formula for normalization, acceptance, and an evolving, corrupt status quo. If Biden copies that approach, he can kiss democratic governance goodbye, because the next Trump will be smarter, smoother, and more of a fascist.

        • BobCon says:

          The specific piece that drives me crazy is the assumption that Biden/DOJ have a lot of control over what they do.

          This is Trump and his henchmen we’re talking about. You may as well try to predict what Biden will do over the next four years regarding Kim and North Korea.

          Maybe nothing emerges, but I can’t understand making a big bet on anyone being in control of events.

          It only takes one whistleblower, one person breaking an NDA, one public leak by a bank employee of a Suspicious Activity Report to take discretion out of DOJ’s hands.

        • timbo says:

          Seems not to be the case with the current DOJ though. Go Easy is easier for folks who want to keep their jobs between changes in regime, particularly when each regime is less and less interested in ending corruption as time goes by.

        • BraveNewWorld says:

          Is it unreasonable to assume that there is enough evidence to charge Trump with the crimes that Cohen served time for? If not then please elaborate.

          Part of why you are feeling frustration is because Biden’s team has been floating the idea of waving the magic wand for Trump. If you decide not to look you will never find evidence. Of course there is the other side of the fence. Republicans still hold the Senate and may not confirm any one that doesn’t agree to look the other way.

        • BraveNewWorld says:

          So you just resort to insulting any one that doesn’t conform to your views. At least I know you have nothing intelligent to say.

      • Molly Pitcher says:

        Well before anything can happen, someone is going to have to divert the Potomac thru the Augean Stables formerly known as the DOJ. I think that a lot of rats have moved in during the Trump/Barr era and I would like only competent, dedicated, actual lawyers left there.

  3. CharlieD says:

    What about Flynn’s involvement in the kidnap plot? Isn’t the DOJ currently looking at charging him over that?

    • bmaz says:

      I am not sure. But if they want to do something, they better hurry up, as the statute will likely run next summer.

  4. Bay State Librul says:

    I’m casting my vote for Sheldon Whitehouse as minority leader of the Senate Judiciary Committee in lieu of the Democratic Whip.
    Cheering crowd sounds from Little Rhody, the Ocean State.

    • Geoguy says:

      I first learned about Sheldon Whitehouse in the 2018 video “Active Measures.” If the Democrats take back the Senate, Trump will be the one sweating (orange) goo.

      • blueedredcounty says:

        Schumer can be hat check person for the Senatorial Cloak room.

        I was able to donate over the last couple of cycles to different candidates. Anytime I was on YouTube and Schumer came on, I tuned out. He made me want to shut down my account.

  5. Mulder says:

    A typo, I think…”As I have noted, in the process of attempting to blow up Flynn’s pardon, Ric Grenell and Sidney Powell and DOJ have released documents”…

    Likely should read “Flynn’s prosecution”.

      • joel fisher says:

        In defense of the original text, there is talk that Powell actually talked Trump out of a Flynn pardon.

    • Spencer Dawkins says:

      I see that EW said “thank you”, but to be fair, with these people you can never be sure what Ric Grenell and Sidney Powell are trying to do, because they fail ineptly so hard :-)

      I’m really sorry that Sidney didn’t trot Hugo Chavez out during the Flynn fiasco, but I guess Trump deserved that to happen to his own legal team.

  6. jaango says:

    I have to disagree with the Common Sense being posted in this thread.

    As such, Biden and Harris should “jettison” all the shenanigans after Trump walks out of the Oval Office. And this means that Biden’s administration can pack-up the boxes that remains readily available, and send this wealth of information to the State of New York for their continuing investigation. As such, the FBI and DOJ, will cooperate with New York’s investigation.

    Consequently, Biden and Harris, start their administration with “clean hands.” Therefore, the voters, writ large, have rendered their iconic ‘verdict’.

      • jaango says:

        Biden and Harris can issue a “directive” to federal agencies to cooperate. Therefore, the State of New York can garner the appropriate accolades, where and when necessary, and no “cost” to the feds.

      • BobCon says:

        There are decent odds there are other federal crimes out there too, and extremely high odds that there are hidden scandals which may or may not be criminal which will not be public until after January.

        I really wish people would stop jumping to conclusions about what Biden should do until evidence is in view. It’s amazing to me that this overconfidence extends up to the op ed pages.

    • Rugger9 says:

      So, what crimes would you consider worthy of investigation and prosecution by the DOJ with respect to DJT and his minions? This look forward, not backward ideology is why we are here because GOP misdeeds were never punished (to encourage the others).

      I noted on an earlier thread that DJT will probably try to claim immunity from state prosecution based upon the OLC opinion not yet tested in court. DJT tried that gambit with the E. Jean Carroll case among others where AG Barr’s pet DOJ tried to force their way in but was rebuffed (for now) by the NYS courts.

      It doesn’t mean that this expected outgrowth of the unitary executive idea would not get traction in a federal system packed with DJT / FedSoc judges that McConnell has been ramming through instead of the 500 or so bills waiting from Pelosi’s desk. As bmaz and others have said, the idea shouldn’t succeed based upon the merits, but with this current court setup it is risky to ignore the possibility.

  7. Peterr says:

    Part of Trump’s problem here is where does he start with the pardons and where does he stop? This post paints a lovely picture of the mess that is the Flynn situation, but there are a host of people who will be clamoring for a pardon of their own, or that Trump will want to make sure he takes care of.

    Rudy, Lev & Igor, Rick Perry, and others involved in the ill-fated Ukrainian adventure?
    Don Jr, Jared, and others involved in the Trump Tower meeting with Russians about getting dirt on Hillary?
    Stone and his minions for . . . a long list of stuff?
    Barr for his gutting of the DOJ, filing motions and withdrawing charges for political rather than legal reasons, and otherwise obstructing justice (lying to Congress about the contents of the Mueller Report?)?
    Etc., etc. et-f^#$ing-cetera.

    The problem for Trump is twofold. First, the more pardons he issues, the worse he looks. His best hope would be to cast it as “righting the wrongs of the witch hunt, which was so extreme it has taken an extreme number of pardons to correct” but that will only appeal to his base. To everyone else, it will look as if he was at the top of a major criminal enterprise.

    Second, and more problematic, is that he will have to stop somewhere. When that happens, there is going to be someone who wanted a pardon for doing what The Boss wanted done regardless of the law, and didn’t get one. They might choose to just keep their head down and hope it all blows over, or may be so pissed that they will drop by the local federal prosecutor’s office and make a nice little proffer. At a minimum, it could shatter the “witch hunt” narrative on which Trump’s tattered reputation is hanging; at a maximum it could point to wrongdoing not covered by any pardons Trump has issued.

    The contents of such a proffer ought to scare Cippilone and Barr, even if it doesn’t scare Trump.

    • emptywheel says:

      Yup. Like someone like Jocelyn Ballantine, who may have been involved in the document tampering. Trump has no clue who she is and to explain it to him might create a record that whoever would do the explaining knew of the conspiracy. But I doubt she would have done this unless ordered. And in that case, she may face two or more rounds of scrutiny, if there’s a DOJ IG investigation.

    • BobCon says:

      I think Barr’s wrecking ball approach may have exaggerated in Trump’s mind (and some overreactive observers) the opportunities to escape justice for anything. The recent collapse of Team Giuliani is highlighting that the damage to the legal system is extensive but not necessarily decisive.

      • earlofhuntingdon says:

        I think we can let Barr off the hook for that one. Trump comes naturally to his exaggerated sense of being able to escape liability for everything. He’s succeeded in doing that his whole life. It’s one of his defining characteristics and a foundational structure of his personality.

        • BobCon says:

          I think there is good evidence that he was being more careful before Barr than after.

          I think Trump feels like he deserves everything, but it takes someone like Barr to open doors for Trump to do a lot of the things he dreams of doing.

        • Alan Charbonneau says:

          “I think there is good evidence that he was being more careful before Barr than after.”

          Yep. Trump always said he wanted a Roy Cohn. I think after Barr arrived, he thought he found one and could now do anything.

          Barr said Trump’s tweets on the Stone case made it ‘Impossible for me to do my job’. He was expecting Trump to understand that “I’ll take care of things, just keep your mouth shut” but Trump now felt no bridge was too far.

  8. OldTulsaDude says:

    Justice assumes an AG who is willing to investigate, and investigating a previous administration is not a strong likelihood; however, there should be at minimum a counterintelligence investigation opened.

  9. Spencer Dawkins says:

    EmptyWheel, this post makes my heart sing. And your comment that Flynn would be done with probation if he hadn’t gotten cute about his plea was the icing on the cake.

    I’ve been commenting elsewhere about post-Trump accomplices and their resumes (Pence’s “led the coronavirus task force that killed 400,000 Americans in a year”, using current forecasts through January 20, as one example).

    Flynn’s 2021 resume for the past 4 years will be ridiculous, even among Trumpists.

  10. David House says:

    I have it on A 1 intel that Alptekin wasn’t funded by Turkey. It’s disconcerting that you would write an article without mentioning his name.

    • bmaz says:

      Lol, and yet there he was, charged with a finding of probable cause. And Flynn’s dishonoring of his cooperation agreement is likely the only reason he is not in prison. “It is disconcerting” you did not mention the other inculpatory factor in your comment.

  11. bmaz says:

    OH NO! Trump has cancelled his appearance at Rudy’s PA shitshow. Someone halfway sane must have gotten to him. Is a shame though, it could have been fun.

      • Eureka says:

        In retrospect the impending pardon is probably precisely why Powell was “fired’ and disavowed from the post election “legal team” in the first place. Waiting for these (and other) consequences EW notes:

        Since then, Powell’s involvement in Trump’s attempts to lie about the election have been contested (and Trump and Powell could both face consequences for their lies on that front).

        Trump _is_ fond of cheesy, half-baked patinas.

    • Rugger9 says:

      Apparently it had to do with a COVID-19 trace or something like it, but considering how DJT rejected advice to avoid Rudy’s “hearing” in the first place this is a significant shift. Maybe DJT can go golfing now.

      • Peterr says:

        Trump sees himself as invulnerable to COVID right now, and has clearly had no compunctions about participating in large gatherings of unmasked people. Anyone who says this was a COVID-related decision is selling something.

        I think this was Barr and Cippilone putting on a united front against this to keep Trump out of it. Not that I see Barr and Cippilone as “halfway sane” to borrow the language of bmaz, but that they have a strong sense of self-preservation.

    • harpie says:

      Whether Trump went or not, the True Faithful got the message that he is planning to fight this fight with them.
      That’s all that was needed.

      Maybe I’m paranoid, but this scares me. [I wrote a bit about it at the end of the [Roger Stone in Georgia thread, because this all might be connected.]

        • Raven Eye says:

          Rudy seemed to suggest that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress” is a fluid thing.

          So if the state legislature passed legislation sometime back describing how electors are selected, and that legislation was signed into law by the governor, that legislature can sometime in the future extemporaneously pass any motion they desire regarding selection of electors…And it will be binding?

  12. madwand says:

    Here is an article speculating on former disparaged members of the Trump administration. From Sally Yates to Christopher Krebs and including Alexander Vindman and Marie Yovanovitch. Sally Yates would make a great AG, has the experience and has acted ethically and bravely. She would use good judgment in evaluating which crimes might be prosecuted at the close of the Trump administration. Put Yovanovitch as Deputy Secretary of State and lets get diplomacy back into the US rather then the military brand. Vindman could return to the NSC and Krebs could go back to his cyber job. I’m really high on Yates and would hope she is in consideration for AG.

    • P J Evans says:

      The GOP-T in the senate will most likely vote against them, because they can’t admit that they’ve been wrong to support whatever Trmp wanted.

    • earlofhuntingdon says:

      I defer to bmaz’s greater knowledge, but Sally Yates as AG would be a disappointing step backward that we can’t afford to take. The opportunity cost, too, would be substantial.

      • madwand says:

        Up above you said,

        “Look forward, not back is a formula for normalization, acceptance, and an evolving, corrupt status quo. If Biden copies that approach, he can kiss democratic governance goodbye, because the next Trump will be smarter, smoother, and more of a fascist.”

        So if I read this right you cant’t look forward or backward, just what direction are you planning on going, sir?

        I’ll still take Yates, courage in the face of loosing her job, ethical, and beats the hell out of the last three AG’s. And then you said,

        “As with being fair and impartial, it’s important to do it and to be seen to do it.”

        Sounds like Yates to me.

  13. PeterS says:

    Surprise “witness” via zoom at Guiliani’s Pennsylvania hearing: yep, D J Trump. You couldn’t make this shit up.

  14. earlofhuntingdon says:

    Joe Biden has been more presidential in the past week than Donald Trump has his entire life. Happy Thanksgiving, everyone!

  15. punaise says:

    it’s late enough in this thread that I can risk triggering the strict bmaz silly-name filter:

    Humpty Trump, he sat on a pardon,
    Humpty Trump, he said “where you all gone?”
    All the thing’s arses, i.e. all the thing’s men
    Could only get Humpty to blather again.

    • bmaz says:

      Lol. I’m coming for you Punaise!

      And, frankly, come January 20, 2021 you and all have at it, if you must. Trump will be irrelevant then. My thing is simply that a lot of folks read here, we are trying to influence them, and would not like to look stupid in the process. The same rule will apply to Biden when he is in office.

  16. GKJames says:

    Is the risk decision for Trump less about whether he committed crimes than about the likelihood of prosecution for them? The evidence accumulated to date would yield a persuasive indictment. But what are the chances that a Biden AG would prosecute, given (i) the uncharted waters of prosecuting a (Senate-acquitted) former president; and (ii) the inevitable need for political calculation by the Dems related to 2022 mid-terms and 2024, and the reality that the 73 million aren’t going anywhere and Trump will be shadowing the proceedings? In that context, isn’t NOT pardoning Flynn the greater risk, not because of what Flynn might disclose, but because it would be seen by the faithful as a betrayal of Flynn’s loyalty? That assumes, of course, that Trump really does want a political future (in whatever form) after January 20.

    • Hika says:

      “Is the risk decision for Trump less about whether he committed crimes than about the likelihood of prosecution for them? ”
      I agree. I think Trump is forked either way, but prefers the odds of a future AG not wanting to rock the boat by prosecuting a former President. Prosecuting Trump would necessarily involve also prosecuting a long list of his minions.
      As to Dems political calculations, they should expect exactly none of the people who voted for Trump to vote for the Dems in 22 or 24.
      Anything seen to be assisting Trump’s minions escape justice will risk losing a lot more votes than will be gained by getting on governing. Whomever Biden chooses will have to be able to walk and chew gum at the same time.

      • Troutwaxer says:

        Or just prosecute the minions – and those couple Senators who are probably guilty of insider trading. And anyone who took instructions from the Russians. And anyone who obstructed justice. Let NY have the pres.

        • pasha says:

          yes, i’ve long thought this as well, bring the minions to justice. nixon may never have gone to prison, but most of his henchmen spent time behind bars, and the stench stayed with the republicans for a few election cycles. fear of a repeat mass prosecution triggered bush’s pardons of the iran-contra felons. i would prefer sullying the reputation of trump’s enablers in the republican party, to lasting effect, to making trump a continuing source of energy for the party.

  17. Coyle says:

    Needless to say, it will be interesting to see where Flynn and his family wind up spending the holidays. Turkey, anyone?

  18. Yargelsnogger says:

    So I assume this will put an end to Sullivan’s investigation of the behavior of the DoJ vis-a-vis their attempt to retract his prosecution. I was kind of looking forward to learning more about their machinations in court.

    Is this going to stop Sullivan from investigating (and us understanding) the details of the shenanigans in Barr’s DoJ on this topic? And could this have been an additional motivation for Trump to issue the pardon now, rather than wait and commute – it would help shield the corrupt flunkies at the DoJ?

    • Rugger9 says:

      I agree with bmaz here, because of all of the hinky stuff proffered by DOJ and Powell to mislead the court. I’ve noted along with many others that Judge Sullivan had first-hand experience in the Ted Stevens prosecution where the DOJ also tried to pull some fast ones (even if the circumstances did not align exactly) so he might be the worst choice to try gaslighting like DOJ did. He has no tolerance for it and IMHO is quite willing to sanction deliberate misinformation.

  19. e.a.f. says:

    Noted on the Canadian news Trump had “pardoned” two turkeys, so I immediately came here to check things out. At some level can’t stop laughing because in my opinion, the “bird brain” with the feathers may be smarter than the two guys who are classified as “human”.

    remember from other articles on the blog, about “pardoning” and then having to testify, if “requested”. This might be interesting yet. . Not only will it be Thanksgiving, Christmas, Hannuka season in the U.S.A., but pardoning season also.

    Having been ever so happy since Biden/Harris won the election, nothing is going to bring me down. The pardoning season was expected. Its just a matter of how many and will it include his kids and will he let Pence be President for a day and a half and have Pence “pardon” him. that of course still won’t absolve him of the debt load he carries, but it is nice to see the tale end of him in the W.H.

    The system stood up under all this duress. It worked. Of course he was not re elected, but still the same, the system worked. I’m happy. Thank you for all the coverage you provided on this over the last few years. You and the team are to be congratulated on the work you have done.

    • ducktree says:

      Well, in the Irish Catholic three-generation household I was raised in, Granny called the tail of the roast turkey or chicken “the pope’s nose” and “the part that goes over the fence last.”


  20. SteveR says:

    I’m probably missing pertinent dynamics, but might some of the political damage, and even legal exposure, Trump could suffer from explicitly articulating various pardoned crimes be readily mitigated?

    Assume, for sake of discussion, that Flynn’s first pardon is general and broad, and perhaps legally ineffective. Yet that is the only pardon presented for public consumption–primary task is 99% complete. I’m hearing that Trump has no obligation to “publish” his pardons. Might not Trump opt to “amend” or augment his pardons such that it’s like peeling an onion–“Oh, you found another crime? Here’s the unpublished amended and restated pardon.”

    I have no expertise or insight regarding how this all works. Then again, I’m not sure anyone does. And I have little if any confidence that it “works.”

    • timbo says:

      If the pardon isn’t published then for all legal purposes it doesn’t actually exist. There are no invisible pardons in our legal system… if there were there would not really be a federal legal system, only a system of federal executive fiat; the federal courts would be in chaos and the state courts, if we were more than half-way lucky, would be overly busy.

  21. N.E. Brigand says:

    Looking ahead, a number of people have suggested that Donald Trump should be offered a non-prosecution agreement, from both the federal government and the relevant states, in exchange for him paying his back taxes and acknowledging his crimes. (I think Ms. Wheeler herself a couple years ago was suggesting an “off-ramp” of this sort to get Trump to resign.) At the federal level, if the Dept. of Justice and Trump reached some such agreement now, would it be binding on the DoJ once Biden is in office? And if not, is there a way to make the incoming administration a party to the agreement?

    Personally I have mixed feelings about this idea. I’m not one to favor punishment for punishment’s sake, but Trump has avoided consequences for bad deeds his entire life, and I don’t see why he should get off where others wouldn’t just because he was lucky enough to be elected president.

    The most important thing for the well-being of the country was to get him out of office, and now we at least know that’s happening. But the next most important thing is to break the Trump spell, and for that, I think we need it to be undeniably clear to everyone that he committed a bunch of crimes.

    So if he’s not going to be charged and convicted, then any such deal must require a full confession to everything: if it later emerges there’s a crime he didn’t admit to, the whole deal gets thrown out and he can be charged with any crime not past its statute of limitation — and with making a false statement by not admitting to the newly-uncovered crime.

    Also, I think he’d absolutely have to agree not to run for public office again.

    Is something like that even possible?

    • P J Evans says:

      I was reading a novel a couple of months ago where some of the (minor but necessary) characters agreed to pardons for all their crimes – and were required to list all of them first.

      Immunity grants you legal innocence,” Bren said. “Anyone who pursues you cannot cite past crimes. And you seem to have an aishid that you do rely on. I reiterate: to gain immunity, you must identify place, and victim, or area of activity, and approximate date, and you must name accomplices as best you can. For all named crimes, you and these several men will be clear. If you commit crimes after signing—then you will be vulnerable to prosecution.

      – ch 19, “Divergence”, C J Cherryh

  22. Kate Freedman says:

    BMaz, Yates was fired by Trump. How could she be involved in those cases? So both Biden and AG are seen as independent?

  23. Christopher Blanchard says:


    As a matter of tactics it seems to me that Biden’s best way forward now is to say nothing, show nothing, indicate nothing, while Trump still has authority. The new administration can’t stop Trump for the next few weeks, so I suggest silence, or as near as practicable. That gives the new people the best set of chances at harming their (our) enemies, because when they are in office they will be acting with genuine authority. The (journalistic) alternative is to make a loud fuss about every piece of stupidity we see, but that lets the Trumpists adjust what they are doing, correct a lot of their mistakes, and grab at public opinion, all while they still have that ‘bully pulpit’.

    In the Flynn context, isn’t it better to pursue cases, and the necessary influence on public opinion, when you are in position, rather than inviting opposition from people who are still powerful – especially Barr, instead of acting now and having to struggle through the swamp which, still, stinks and drags around your knees.

    I realise there might be deadines and maybe other opportunities, which say otherwise, but they will be specifics, so I am arguing a large stance, and not for everything.

    Biden’s quiet smile suggests he might see things that way, and I hope so.

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