Kraken Clemency: Did Trump Issue the Flynn Pardon Wednesday To Avoid Potential Conflict with Sidney Powell’s Batshittery??

I have to admit: given the certainty that Trump was going to pardon Mike Flynn eventually, I’m really grateful he did it on Wednesday, because it allowed for a truly epic headline, “Trump Pardons an Undisclosed Agent of Turkey Along with a Thanksgiving Bird.”

But I’m really mystified by the timing of it.

After all, there was still an outside chance that Judge Emmet Sullivan would agree to DOJ’s motion to dismiss, which would have eliminated Flynn’s guilty verdict more convincingly than this pardon. And, given that the pardon seems to exist only in Tweet form as of right now, Sullivan could still file his ruling, knowing that he’d be getting notice of a pardon sometime next week. Alternately, the early pardon could give Sullivan the opportunity to craft his other decisions, such as regarding Flynn’s motion to withdraw his plea, in ways that might have legal repercussions for Flynn and his son. So it seems risky to pardon Flynn before Sullivan rules.

I can think of several possible reasons for the timing. But the most intriguing is a tie between Sidney Powell’s efforts to sustain Trump’s most baseless conspiracy theories without any potential conflict for Flynn.

The upcoming Sullivan decision

Depending on how Trump words the pardon, the timing of this might still be an effort to pre-empt Sullivan’s decision. If Trump were to describe the pardon as all crimes Flynn committed from July 2016 to the present (meaning Wednesday), and if courts accepted that unspecific language, then it would cover not just Flynn’s lies to the FBI, but also his efforts to hide that he was an Agent of Turkey and his sworn materially conflicting statements before Judges Rudolph Contreras and Sullivan as well as the grand jury.

Or to put it another way, this may be an effort to write an even more abusive pardon in a way that few will notice.

Though I’ll notice.

The upcoming BuzzFeed FOIA release

On Tuesday, BuzzFeed will get another big drop of FBI 302s from the Mueller investigation. According to FOIA terrorist Jason Leopold, DOJ has not told them whether the drop will include the Flynn 302s, but does claim this will be the last release (which would seem to suggest it has to include the Flynn 302s).

Almost year ago, the government provided Flynn with his 302s, which make up 761 pages. They subsequently said that his cooperation with Mueller was not substantial and raised questions about his candor even after his initial interview. That’s consistent with Flynn’s own description of the early proffers, given that his Covington lawyers tried to get him back on track to cooperate after the first one.

Releasing the warrants in Flynn’s case was damning enough (though as a result of the timing, almost no one has scrutinized them closely). But these 302s may prove still more damning (not least because they should provide additional details of a meeting where Trump discussed reaching out to WikiLeaks after the Podesta emails dropped). They also may show that Flynn continued to lie to protect the President even while he was pretending to cooperate.

So Trump may have been tipped that if he wanted to limit the outrage over this pardon, he should get it done before the 302s come out on Tuesday, if indeed they will come out.

The conflict between Sidney Powell TV election lawyer and Sidney Powell TV defense attorney

Finally, I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November 20, Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

But if Powell’s involvement made Pat Cipollone and/or Bill Barr — who presumably share the challenging task of helping Trump write pardons that don’t backfire — squeamish, it might explain the timing.

88 replies
  1. bmaz says:

    I’m just going to park this here. The Third Circuit just issued its opinion drawing, quartering and blowing up the Trump Kraken effort in PA. It is a brutal dressing down. Here is the opinion. Oh, and for the cherry on top, it was authored by a Trump appointee.

        • bmaz says:

          Oh, no, not at all. I was just negligent in not saying those words, also in getting distracted and not inserting the link I already had copied.

        • Badger Robert says:

          It appears that the Supremes seriously do not want any election cases and the Ct of Appeals heard the message loud and clear.
          Because if election are federalized, eventually the Dems will be the majority and that will be authority that they will use.

        • timbo says:

          You mean Roberts doesn’t want any of this nonsense, right? As for the rest of the Twisslerings that are likely on this court, it is good that they won’t be able to distill their ginning here at this time.

    • Peterr says:

      Calling it “brutal” is being generous.

      After recounting the facts of the litigation at the District Court, this Court summarized things by saying “We commend the District Court for its fast, fair, patient handling of this demanding litigation.”

      In appellate opinions, the courts usually stop when they find a single issue that resolves the case. “Since the case at hand fails at this step, we don’t need to go any further.” In this opinion, however, they said this about whether the District court overstepped things by disallowing the filing of yet another amended complaint:

      Courts should grant leave to amend “freely . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). In civil-rights cases, that means granting leave unless “amendment would be futile or inequitable.” Vorchheimer v. Phila. Owners Ass’n, 903 F.3d 100, 113 (3d Cir. 2018); Cureton v. NCAA, 252 F.3d 267, 272–73 (3d Cir. 2001) (giving undue delay as an example of inequity). Here, the Campaign’s request fails as both inequitable and futile.

      (Emphasis added)

      One more taste, smacking Team Kraken on their hypocrisy:

      Having repeatedly stressed the certification deadline, the Campaign cannot now pivot and object that the District Court abused its discretion by holding the Campaign to that very deadline. It did not.

      You get the idea.

      I think someone had far too much fun writing this opinion.

      • PeterS says:

        What is the significance of the sentence at the end “we grant all motions to file overlength responses….”?

        • Peterr says:

          If someone wants to take issue with this opinion, they can file their motions without worrying about the usual page limit on the length of their argument.

        • timbo says:

          It pays to be a hack lawyer paid by the word and working for Twitler it seems? May they write a novel and not collect a single cent.

        • bmaz says:

          Yeah, none at all. Just letting the record know that plaintiffs were given every opportunity before failing spectacularly.

        • blueedredcounty says:

          I think if your dog relieved itself on any filings produced by Jenna Ellis, it would improve their quality.

        • J R in WV says:

          Many, many years ago, back when I still attempted to grapple with IRS instructions, I had a stack of our documents on a table, where a cat relieved himself upon those documents.

          While it appeared to be appropriate to me, I realized that the civil service employees who would have to deal with the various documents were not responsible for the rules/instructions, I therefore placed each document in a ziplock container in a readable manner, and sent the whole mess in to the IRS on time.

          I never heard back, so I guess they had pity on me… was the last year I attempted to complete and file our IRS paperwork, ever.

        • earlofhuntingdon says:

          Courts impose page limits – these days, their digital equivalent – to make lawyers boil down their arguments to fewer words and save the court’s time.

          In part, that’s because “lawyers” like Powell and Giuliani are routinely afflicted with verbal diarrhea. Here, they seem to have waived it for the reasons bmaz cited.

      • Alan Charbonneau says:

        Donald Trump will go ballistic over this point:
        B. The campaign faces no irreparable harm”
        In his mind, losing is irreparable harm, the law be damned!

      • Badger Robert says:

        What’s the deadline for filing a Writ of Cert? Because if its denied the rest of the Circuits will get the message that they will be supported if they dismiss all these appeals.

      • Valley girl says:

        Peterr, after reading your comments, I went off to read the document. And, enjoyed the prose, including thus:

        ~ “Upon information and belief” is a lawyerly way of saying that the Campaign does not know that something is a fact but just suspects it or has heard it.

        ~Bush v. Gore does not federalize every jot and tittle of state election law.

        ~But its alchemy cannot transmute lead into gold.

    • Fraud Guy says:

      Reading this as a non-lawyer:

      “We grant all motions to file overlength responses, to file amicus briefs, and to supplement appendices. We deny all other outstanding motions as moot. This Court’s mandate shall issue at once.”

      Sounds like they are being told to chat at the luncheon all they want, but the funeral is over.

  2. Peterr says:

    Two more factors:

    First, there is Trump’s ego. Announcing a pardon of Flynn certainly put a dent in the coverage of Biden’s presidential-sounding Thanksgiving remarks earlier on Wednesday, as well as all the comparisons between four years of Trump’s unpresidential demeanor. The holiday then served to give the whole thing a break, and without a formal pardon document to talk about, the media will let go of the story for a bit. Bottom line, as Trump sees it, is that he won the news cycle.

    Second, there’s the assassination of Iran’s top nuclear scientist. The two main folks that people suspect were behind it were Israel’s Mossad or some element of the US military. This was not an operation put together on a moment’s notice. If the US was behind it, Trump had to have given the sign-off and knew it was coming (though perhaps not the specific timing – he may have left the operational details like that to others). If it was Israel, it is highly likely that they spoke with their US counterparts, not so much for permission as to give them a heads up that this was coming. Again, the timing of such a heads up is (hypothetically speaking) could cover a wide range of time. Pompeo’s recent trip to Israel that included his very public vist to an Israeli settlement may also have included some very private conversations, including Israel expressing their concerns about Iran’s nuclear program. Bibi: “You guys are only around for a couple more weeks, and this is getting worse. If you don’t take them out, we will.” Pompeo: “You go right ahead, and we won’t complain.” Bibi: “OK, but it’s got to be before January 20, or it will make it harder to deal with Biden.”

    The absence of the release of a pardon document suggests either (a) Trump announced it before letting his lawyers know about it, and they don’t have the document ready yet, or (b) delaying the release of the actual pardon on the eve of the holiday and the assassination in Iran was a strategic decision that allowed Trump to get the news of the pardon out there but not give the media something formal to chew on and then let it get overtaken by subsequent events.

    I can’t see Trump being strategic like (b), but I can certainly see Barr and Pompeo being strategic and persuading Trump to take their advice. The question has always been WHEN Trump will pardon Flynn, not IF, and various people had to have been gaming out all kinds of options for the timing. My WAG is that Trump got ahead of Barr and announced it out of pique on Wednesday to get Biden’s well-received remarks off his television, but Barr held back the actual pardon document so that it didn’t take over the news cycle of a five day weekend. Toss in the assassination, and the pardon gets even less attention until the document itself drops.

    • Rugger9 says:

      With respect to item 2: the weird meeting with Pompeo, Bibi and MBS (allegedly) discussed hitting Iran’s nuclear sites, so the assassination of a top scientist would be seen as a signal by Iran and they would be expected to retaliate.

      Starting something with Iran is a choice for tying up Biden with as many of our European allies would also get blowback. It also significantly strengthens Putin’s hand to supply Europe’s hydrocarbons with appropriate quid pro quos. That also fits into DJT’s mindset. An Iran war will not go as well as the Iraq war does for us, since the Iranians are much more cohesive that the Iraqis are, and significant Iraqi factions would join the mullahs. We still have substantial numbers of troops there in Iraq, but IMHO not enough to stop a serious campaign by the Iranian and Iraqi allies to cause severe casualties. Would Turkey help us out of that jam? I don’t know. Whether the Kurds would is also doubtful given how DJT sold them out.

      I originally had Venezuela in my invasion list, but this news changes things considerably.

      • P J Evans says:

        I suspect people who want a war with Iran think that it will be like Iraq.
        It has a lot of coastline for missile batteries to hide in, unlike Iraq. And a decent air force.

        • Bay State Librul says:

          Trump will do something before January 20th.

          The Israeli’s and Trump/Pompeo/Kushner fingerprints are all over this but nobody will admit it. All the whistleblowers are dead.

          The worse is yet to come

        • OldTulsaDude says:

          I just read that Trump already is walking back his “yes, I’ll leave” statement by claiming now that Biden must prove to Trump that his 80 million votes were legitimate else he won’t see the inside of the White House.

        • earlofhuntingdon says:

          Theater for the base, his ticket to prominence and income in retirement.

          It’s not up to Trump. At noon on January 20, 2021, he’s out of a job and the right to occupy the White House. After four years of Trump’s abuse, I suspect the Secret Service will be happy to escort him from the building.

        • Bardi says:

          ” I suspect the Secret Service will be happy to escort him from the building.”

          My relative in the S.S. confirms this comment.

        • P J Evans says:

          It should be on pay-per-view (world-wide). And he gets zip-tied.
          It could go a long way toward fixing the deficit.

        • Rugger9 says:

          The other question for me is how much Putin and Xi will quietly provide military support such as equipment or intelligence to make sure the US will remain embroiled in Iran for a long time.

        • Stephen Calhoun says:

          Handing off a month old war against Iran (that nobody sane wants) to the new President might initiate Trump’s greatest crime. In the context of such a head spinning event, Trumpist anti-neocons’ heads would explode. But, such a parting shot war would upend Biden’s desire to re-engage Iran, and it would slap President Obama in the face one last time.

        • readerOfTeaLeaves says:

          It is logical to suppose that part of the motive was to screw Biden/US. More of Trump’s depravity, but it’s unclear whose instructions he is following in this matter.

          I have yet to see any credible sign that any branch of the US military is willing to engage with Iran. They don’t (yet) take their orders from Bibi, nor MbS.

      • timbo says:

        Yeah, Venezuela was on my list too; I too am surprised that Team Whocouldanoo didn’t try to wag that dog, frankly. Thankfully, we didn’t get more involved down there than we already are—hopefully Biden’s folks can help stabilize some of the mess we’ve created down there.

  3. Rugger9 says:

    Well, I would expect the blanket style pardon because of the loose ends with Turkey, and the fact that such a blanket pardon would protect Flynn from Army action with respect to the Turkish angle. The devil is in the details, and still there is no text to review.

    Until Sullivan has formal notice I guess he can rule because he wouldn’t know the scope of the pardon otherwise. I would observe that DJT frequently does his policy decisions via tweet (i.e. firing SecDef Esper) so perhaps DJT thinks his pardon is already a done deal.

    • Mitch Neher says:

      Jefferson signed a bunch of blank pardons that he sent to U.S. Commissioner George Hay to entice witnesses into testifying against Burr. [I double-checked that one. It’s legit.]

      There’s a question as to whether State secret privilege could prevent public disclosure of such a signed, blank, self pardon up until the moment Trump accepts that pardon of himself, from himself.

      P. S. Sorry for the previous error. There’s no way to channel Giuliani without dripping from the forehead.

  4. PeterS says:

    If for some reason the present pardon turns out to be legally problematic for Flynn, I assume Trump could issue a second, top-up pardon before he leaves office? In other words, is there real pressure on them to get it right first time?

    • Peterr says:

      If the problems become apparent before January 20, Trump could try again. If it become apparent after that, Flynn is screwed.

      • PeterS says:

        Of course. I was just half-wondering if a two part pardon could be a strategy (obviously not one born of Trump’s brain).

        • bmaz says:

          The problem with this hypothesis is that, by all normal procedure, Flynn would have to affirmatively plead his pardon with Sullivan for it to be effective in that particular case. So, it needs to be in final form pretty fast. Could Trump do an additional one? Sure I guess.

    • earlofhuntingdon says:

      It would be an admission of corrupt intent. For lawyers who do this for a living, these pardons are not that hard to draft. That is, if the intent is to grant clemency to someone who has been convicted, done their time, and recanted their criminal ways.

      Trump’s pardons, on the other hand, are self-serving and intended for theatrical effect. That would make the drafting harder.

        • Peterr says:

          Drafting it is not hard.

          Drafting it in a way that Trump will sign, OTOH, is something else. “I’m not signing that! You make it sound like I did something wrong, or that my friend did something wrong! Go back and do it again the right way, making clear that the election was stolen, that Mueller was a witch-hunter, and that there’s nothing wrong with any aspect of what I and my friends have done over the last 4 years.”

    • timbo says:

      That could well be the strategy. See what Sullivan does with the first attempt and then issue a second one if things go south between now and Jan 21. Seems like this is a game of chicken with Sullivan pretty much. Team Twitler seems to have blinked a little early here for some reason so it is indeed a good question as to why.

  5. gusgus says:

    The timing of pardoning Sidney Powell’s client just days after dumping her from the crack Trump campaign team of lawyers is quite peculiar.

    @emptywheel’s closing arguments that Cippolini and Barr encouraged Trump to cut Powell lose before Trump pardoned Flynn seems plausible. The basic argument is Trump was going to pardon Flynn in any case. But Barr prevailed on Trump to jettison Powell first to make the pardon seem less unseemly. Yes that kinda makes sense.

    But I wonder if causality might go the other way? Last weekend Trump jettisons Sydney Powell because she looks terrible on TV and damage control is needed. Then either Powell or Mike Flynn call up Trump to complain. Trump, to placate them, pardons Flynn.

    The Flynn pardon was almost inevitable anyways, so maybe Trump just sped it up to keep Powell and Flynn happy?

    • Vicks says:

      Perhaps Flynn, watching Powell work the same kind of “magic” for President Trump she has been working for him finally got it?
      On the assumption that some of the reason Flynn got in trouble was to protect Trump Flynn could have finally lost confidence, and called in his chits

  6. Norskeflamthrower says:

    Way off topic but maybe not so much: Using the current gross totals for president, Democrats won by 61,732 votes per district in a non-Gerrymandered situation. How long can this structural imbalance go on? I’m wondering if all the distraction and misdirection over pardons and prosecutions after inauguration is keeping us from looking at how successful the coup has been?

    • Norskeflamthrower says:

      Instead of screaming about “Democrats in disarray” maybe the line would be “democracy is as dead as Mohsen Fakhrizadeh”.

    • Rugger9 says:

      Perhaps the appropriate reform is to make House districts have the population of the average of the smallest 3 state populations (the ones with 3 EVs) and expand the House of Representatives numbers. This I think can be done through normal legislation.

      I’d also get rid of the one-vote-per-delegation for election evaluations but that would require a Constitutional intervention.

      • Norskeflamthrower says:

        Great idea. The solution to ALL our current equity problems is increasing the average the number of constituents, increasing house districts, adding two states AND increasing SCOTUS by 20 judges. I think that could be done without a constitutional amendment. If we can just keep from getting in a hot war on the African continent between now and 2022 that might be possible. JEEEzus, this pushing to the brink is reminiscent of 1939.

        • ThoughtMail says:

          Not just 2 states. California doing what was done with the Dakotas, making two from one, would even the playing field a little. A three-for-one would be more equitable for Californians, but still uneven with the Dakotas.

        • P J Evans says:

          That’s been proposed so many times – and there’s no agreement on where to draw the line. (FWIW, a lot of us know people all over the state, so splitting it would make things worse. Besides, it got split in 1846, into Baja California and Alta California.)

        • ThoughtMail says:

          Sure. But, stating the obvious, where all of the present and recent troubles (say, 40 years) point is to further fractioning of the body politic, to entropy. I don’t have a solution for the restoration of equity. Increasing representation (Article II, or III) won’t appear to solve any of those problems. If it did, the Rs would have done it long ago (with recent history particularly in perspective, you know that to be a more attractive to them). I don’t understand what has held them back; we now can be certain that they’re capable of it.

        • Molly Pitcher says:

          NOT gonna happen. With the exception of the batshit State of Jefferson, the barely populated extreme north east corner of the state which has the political profile of the white supremacist areas of Idaho, everyone in California understands the advantage of being the big dog in the fight.

        • earlofhuntingdon says:

          Absolutely. Only the GOP favor a break-up, because it hopes to gerrymander the new state of Southern California to be as bright red as possible. It’s their only hope if DC and Puerto Rico become states.

        • graham firchlis says:

          There have been more than 220 formalized efforts to divide California since statehood. All have failed, and none have come close in the last hundred years.

          As a native Californiano IMHO we really don’t want to, so thanks for asking but no thanks. Muck around with your own states if you must, we’re good.

          The two Dakotas are not the same as California. They were created de novo after carve-out from a larger US territory, at the same time as Idaho and Montana. California in contrast was admitted in its entirety as a previously independent nation, after secession from Mexico.

          The Dakotas then were economically independent, and to a large degree antagonistic. Modern California’s economic interests are thoroughly integrated. Water rights alone would be all but impossible to untangle satisfactorily.

      • Fraud Guy says:

        I always thought that representatives should be assigned by whole multiples of the smallest state’s population. That would bring us (currently) to 545 Representatives in the House.

  7. ducktree says:

    It gives me great pleasure invoking ianal . . . but I’ll go ahead and throw this proposal out there anyway.

    1) With 29 justices on the SCOTUS and perhaps four Senate seats and innumerable HR seats, wouldn’t the limit of 11 Circuits become unwieldy, notwithstanding the JPMDL?

    2) Would all hearings be en banc with all members attending, or would there first be panel hearings depending on and directed by the diversity of the parties involved?

    Sorry for the many uninformed questions.

  8. John Langston says:

    I don’t suppose the Judge has the power or will to make Flynn spill his guts on the stand before accepting the pardon and setting Flynn free?

    That would be worth price of admission. Especially if Flynn lied or refused, facing perjury or contempt. I suppose I’m in pipedream land?

    • John Paul Jones says:

      From the report:

      “145 foreign officials from 75 governments have visited Trump properties. More Turkish officials have visited than representatives of any other country.”

      Makes one wonder whether Flynn’s work for Turkey was known to Trump and/or briefed to him, and whether all of that work was on Flynn’s own behalf. As I say, purely speculative.

  9. Savage Librarian says:

    Just in case there wasn’t enough crazy already:

    “Ex-Overstock CEO Says He’s Put Together an ‘Army of Various Odd People’ to Save Trump” – 11/28/20

    “Despite his vague claims, Byrne says he’s been funneling allegations about the election to the White House and one-time Trump lawyer Sidney Powell for weeks….”

    “Sidney was the first to really get it, and to get what we’re saying is so vast, that you need kind of a very open-minded person to get it,” Byrne said in the InTheMatrixxx podcast.”

      • Desider says:

        Idunno, Popehat might want to worry that “Shaolin Monk” eclipses him.
        Especially with a cool $1 mill on the line for a Russian spy/consort to extend his genetic line.
        Someone’s taking his anime cosplay a bit too serious. But I like it – good counterpoint for Rudy, who’s too doltish and self-absorbed – Byrne is the better study in kray kray Kraken (under pressure?). Maybe he really is planning a film – on NewsMax.

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