Trump Attempts to Invalidate the Mueller Investigation

Overnight, DOJ submitted the pardon language for Mike Flynn in his docket. It covers:

  • The false statements as charged under the criminal information filed in the docket
  • All possible offenses arising from the facts set forth in that and the Statement of Offense
  • All offenses that might arise from the proceedings under that docket number
  • All offenses under the investigative authority of Robert Mueller
  • All charges identified under Mueller’s authority, including anything identified by the grand juries in DC or Virginia

It is a breathtaking attempt to invalidate the work of Robert Mueller and Flynn’s subsequent lies to get out out of his legal jeopardy. This kind of pardon might work for others.

But it does not, in fact, go far enough. It would be child’s play to charge and convict Mike Flynn without violating the scope of this pardon, even if it were to stand as written.

I’ll explain how on January 21.

48 replies
    • pseudonymous in nc says:

      It’s not a tease: it’s a recognition that the people putting together these pardons are paying attention to EW, and they still have seven weeks of potential fuckery ahead of them.

      But at least they’ve shown their hand: this is the form of language they think will nullify not only the charges and prosecutions that arose from the Mueller investigation but also the investigations that were transferred or put on ice, and anything that turns up once the books are opened on this criminal administration.

      It’s not a date-range pardon, like Nixon’s. It’s arguably broader than Nixon’s. It has tentacles. It contains within itself a kind of time-warping capacity to pardon crimes that are still ongoing, as long as specific criminal activities can be backdated.

      But Nixon’s pardon was never litigated. Judge Sullivan has a stake in clarifying the terms. And there will certainly be pardons to come that use the same language, deserve to be litigated, that a Biden DOJ should litigate, and that if litigated will probably end up in front of the Supreme Court.

    • puzzled scottish person says:

      ‘Ooooh, you can’t tease us like that!!!’

      Oh yes she can!

      Altogether now …

      Oh, sorry, this isn’t panto.

      More seriously, it’s good to get all those little ducks lined up nicely if you want to take the bad guys down. And I suspect Marcy’s got all those little ducks ready and waiting. I look forward to January 21st :-)

  1. Bay State Librul says:

    What a teaser!
    Marcy has entered the realm of a “mystery writer”
    What kind? Not a ghost story, but a creepy crime novel where democracy gets murdered.
    Your cast of characters: Judge Sully, Barr, Mueller, Trump, McFarland, Flynn Junior, the Russians.
    The plot: dramatic opening in 2016, the twists, and finally the climax
    Can we get an advanced copy?

    • Desider says:

      Presumably, an “advance copy” could help Team Trump fix the waknesses in the Pardon, so preferably not. Even hinting it’s not airtight is worrisome – better to have a complete inaugural surprise.

  2. DannyBurntMusic says:

    Good call. Don’t help them. I have a gut feeling the hacks on Team Trumpf file their nonsense in court then sit back and read appellate twitter for free legal advice.

  3. Rugger9 says:

    I would agree with the delay and with the idea that as dirty as Flynn is proving to be (EoH and I noted this on the last thread) there is no way that a WH as chaotic as this one pays enough attention to all of the details. We can start with the fact that Flynn can be compelled to talk about all of the topics covered by the pardon, with the consequences for DJT and many of the players named in various reports and court documents.

    On January 21, 2021 Biden’s DOJ will enforce subpoenas and contempt of Congress. The lack of enforcement by AG Barr (and the Senate GOP) is why these gambits had been working for DJT, but the window is closing. That’s another reason (aside from petulant spite) that DJT is trying to leave as big a mess for Biden as he can.

  4. viget says:

    That is good to hear, Ms.Wheeler.

    I thought that the subject matter-limited, rather than time-limited approach was quite novel and overly broad, for one, if Flynn continues to crime via participating in an ongoing conspiracy, this pardon would seem to argue he’s off the hook, even though the crimes occurred AFTER the date of the pardon. But, hey, B+ for effort, I guess.

    I hope Sullivan is ready to make judicial history. He should challenge it anyway.

    • yogarhythms says:

      Perfect cliff hanger. Season 45 is almost in the can. Plenty of Hollywood extras looking for Covid 19 greeter jobs for season 46.
      Will there be a trailer release prior to Jan 21 2021?

  5. iamsmall says:

    Thanks to everything I’ve learned here at Emptywheel I couldn’t resist nominating Justice Sullivan for the ‘Profiles in Courage’ award for next year.
    Between dealing with a Russian asset like Flynn and a DOJ corrupted by Wm. Barr, he still manages to remain ahead of the curve on all the participants. He was still able to hold the feet of the US postal service to the fire in one of the largest elections in history and during a pandemic no less. Seems to me he’s having a bad year.

    I am not a legal, but is his tool box so vast that he can pull the exact, right sized scalpel out of his tool box to cut Flynn and his idiot counsel to the bone, or does he have to lay awake nights to review his strategy?
    Thank you Ms. Wheeler for laying out this messy case so even an idiot like me can follow.

    • viget says:

      I definitely think he (Sullivan) should be on the short list for the Presidential Medal of Freedom recipients. I hope Biden does this.

      • Chris.EL says:

        If it’s what you say it is, Marcy, *I love it!!*
        Trump’s attempts to be superlatively grandiose always — when all is said and done — seem to fail.
        What’s also great about Judge Sullivan is his ability to plow ahead, advocating for the rule of law, while deflecting nonsense, nosing out BS, moving these cases along!

        I summon all hope Judge Sullivan succeeds; the USA needs more citizens with his gumption!

    • Peterr says:

      Here’s the official language of the scope of Mueller’s investigation:

      (b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:
      (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
      (ii) any matters that arose or may arise directly from the investigation; and
      (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

      (c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

      The phrases “any matters” and “any other matters” and “arising from” cover a lot of ground. A future prosecution of Flynn would have to prove that it arose not from Mueller’s work but from things discovered and pursued independent of (and likely prior to) Mueller.

      • Phil says:

        Yes, the letter of the authorization gave Mueller lots of jurisdiction but in practice he didn’t have it. I think there have been plenty of posts here showing how Mueller was limited in what he could do by DOJ.

        I don’t necessarily know how it would directly relate to Flynn, but it seems that if the argument is that everything Mueller had power to investigate was pardoned, then the pardon is limited by how he was limited

        • Rugger9 says:

          I’ve been bouncing this topic back and forth with bmaz, and basically it gets to the point that since Flynn is retired (and now pardoned) he is unreachable by the Army. However, I would not be surprised if a bread crumb or two from his time in the Army gets located for an Article 134 charge. That is a very small chance indeed, but since Flynn is such a dirtball it’s still a possibility.

        • Ben Soares says:

          I hear you. I guess the answer lies in what if any responsibility a ” retired” military person with access to Secret information is beholden to. I reckon Mr. Flynn is not the type to read the fine print….I’m sure this predicament has been visited …in Military Courts …information has value . IMHO IANAL …lol

        • earlofhuntingdon says:

          A more refined dismissal than, “I crap bigger than you,” followed by, “The day ain’t over yet.” I’ll bet you sing a mean Tumblin’ Tumbleweeds. Thanks for moderating us. It’s likely to require overtime before January 20th arrives.

  6. Bay State Librul says:

    Rudy is next in line — from NYTtimes

    “Rudolph W. Giuliani, President Trump’s lawyer who has led the most extensive efforts to damage his client’s political rivals and undermine the election results, discussed with the president as recently as last week the possibility of receiving a pre-emptive pardon before Mr. Trump leaves office, according to two people told of the discussion.”

    • Peterr says:

      Good luck with that. The notion of Post-Pardon Rudy, required to testify under oath without resort to the Fifth Amendment, ought to scare the bejesus out of a whole lot of folks.

  7. Ben F says:

    The breadth of this pardon will impair Flynn’s ability to plead the fifth when being questioned in future investigations.

    Also, it’s cruel to make us wait an unnecessary twelve hours for the next installment. Release the Kraken at 12:01pm EST on January 20!

    • gmoke says:

      I would like to know from real lawyers (and Marcy) the ramifications of the scope of this pardon on the ability of Flynn’s pleading the Fifth Amendment in any further legal proceedings. Will this come back to bite them all the Trmpists in the @$$ or will the Dems “look forward instead of looking back” and have these saboteurs bite the Biden administration in the @$$ and any other places they can sink their teeth?

  8. Eureka says:

    Dropping in with an item of interest:

    Brad Heath: “One little thing about Sidney Powell’s Georgia “Kraken” lawsuit, courtesy of a helpful emailer. She argues that the state’s certification of its Dominion equipment is “undated.” It’s not – it’s online. The date is just obviously cropped out in the one filed with her lawsuit. [screenshots]”
    10:07 AM · Dec 1, 2020

    “Compare: What was filed in court: [link] What’s online: [link]”

    “This isn’t the biggest problem with Powell’s lawsuit. It might not even make the top 10. But it’s not great.”
    11:13 AM · Dec 1, 2020

  9. Marc says:

    I’m looking forward to the analysis but isn’t it moot since Biden has foreshadowed his lack of desire to litigate Trump, et. al’s misdeeds? Any luck the “independent” AG’s office will take undertake the effort? If Mcconnell so frustrates/obstructs the Dems, maybe Pelosi/Shiff pursue investigations?

  10. Fran of the North says:

    If it hasn’t been evident before, it will be now: IANAL.

    That said, it has long appeared to me that *every single one* of Trump’s pardons have all been designed to set precedent for the day when he pardons himself and his spawn. In the same way each successive trampling of democratic norm enabled the next more serious offense.

    To the point that simple run-of-the-mill criminal behavior by the White House and cabinet officials has been normalized.

    The Flynn pardon takes the next step and provides protections from charges which haven’t been brought yet. If that concept stands, then the only untested legal theory is whether he can self-pardon.

    • bmaz says:

      Honestly, that is not a problem at all. The person and prior conduct is being pardoned. That is fine. But Trump cannot pardon future conduct or crimes, only can protect against future charges based on pre-pardon conduct.

      • Fran of the North says:

        Thanks for the clarification. My mind is a fever’d swamp these past few years. This place keeps me sane.

        Sorry if I missed it, but has there been discussion on Eric Muller’s article in The Atlantic on the use of the word ‘grant’ as in granting pardons?

        The essence is that other Constitutional use implies that ‘grant’ is something done to others, not yourself.

        • bmaz says:

          Not to my knowledge, no hard discussion on that. To my eye, a President should not be able to pardon him or herself. But this is crazy land, and there is no real precedent. It was looked at by OLC in the Nixon time, but that is not binding.

      • Njrun says:

        I get your point about past crimes, but what’s the legality of pardoning cronies whose crimes were committed on behalf of the president? If that stands, we essentially have chucked the rule of law.

        • earlofhuntingdon says:

          The pardon(s) remain valid. I would argue that if they are issued for a corrupt purpose, it exposes the issuing president to potential criminal liability, which should be investigated.

          Contra Chuck Rosenberg, Gerald Ford did not pardon Nixon to heal the nation. If he did, it didn’t work. Much more likely, he pardoned Nixon to protect the GOP from the harm Nixon’s crimes did to it and the country.

          That broad pardon – every federal crime Nixon did or might have done while president – is partly what gave us Trump. Before that, it helped give us Iran-Contra, which led to Bush Sr and Bill Barr’s Iran-Contra pardons.

          Those pardoned six senior DoD, State, CIA, and NSA officials, but had the effect of giving de facto pardons to Reagan and Bush Sr. If Trump faces no consequences for his stream of crimes, imagine what a better, stronger, faster Trump 2.0 will get away with.

  11. Silly but True says:

    While not a pardon, there is interesting precedent in Iran-Contra conspiracy prosecutions of immunity-dealt-North.

    Because North’s testimony was given under a grant of immunity from prosecution, a divided federal appeals court held that those who heard it and were influenced by it should not have been allowed to testify against Mr. North.

    Either being honest or shrewdly loyal to North, Robert C. McFarlane — North’s superior in the conspiracy — completely blew up the case when he said that his testimony in the North trial had been deeply influenced by watching Mr. North’s appearance before the congressional committees.

    That appearance and everything North testified to was covered by immunity deal. So with the prosecution was tainted, Special Counsel Walsh was forced to dismiss, and judge promptly agreed.

    Although interesting enough, creative prosecutors can and have composed criminal conspiracy cases with only one conspirator.

    Problem in North was prosecution was not careful to firewall all immune information from the evidence used to try to prosecute. That would be same issue in Flynn. It might be possible to chart a path through that maze but it would need to be isolated from his pardoned conduct.

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