The Facts “Known to” the Mueller Investigation: Judge Sullivan Should Demand the December 22, 2016 Flynn Transcript

I wrote up four things that, if I were Judge Emmet Sullivan presiding over the Mike Flynn case, I would do:

  • Make Trump name Flynn’s crimes
  • Establish a record about whether Flynn or Sidney Powell traded electoral assistance for this pardon
  • Force DOJ to explain what went into the altered documents
  • Identify who wrote the pardon

I’ve been thinking especially about what may be unconstitutional vagueness in Trump’s pardon, which purports to pardon Flynn for any facts “known to” the Mueller investigation. How do you circumscribe facts “known to” an investigation? After all, the entire Justice Manual and a lot of US code was “known to” those who conducted the investigation. Much of Flynn’s biography became “known to” investigators. Is Flynn pardoned for anything pertaining to that? That would be prospective immunity that goes well beyond the President’s pardon power. And how can Trump pardon crimes “related” to the investigation that have not yet been committed (if, for example, Flynn were to become a lobbyist for Russia based on the warm relationship he established by lying to protect them and chose not to register as a foreign agent for them)?

And so in addition to forcing Trump to name the crimes for which he is pardoning Flynn (at least with respect to all those before Sullivan, which include his charged false statements, the selling out to Turkey related crimes that were part of the plea, and crimes committed in Sullivan’s court room and the EDVA grand jury), it seems Sullivan may have the ability to lay out what is included in that “known to” language.

As part of that, Sullivan may have the authority to demand that DOJ file all of Flynn’s 302s as well as the transcripts of Flynn’s calls with Sergey Kislyak (Sullivan might also ask DOJ to lodge the grand jury testimony implicating Flynn, because that, too, defines the scope of the pardon).

I’m certain that DOJ is trying to hide those 302s, but I also don’t think there’s anything all that surprising in there (indeed, I think we’d find that Flynn was knowingly shading testimony). But I still think it legally sustainable, not least because there’s reason to believe Flynn committed a crime with respect to a fact that I suspect was not known to Mueller, because it may have been deliberately withheld (again, I’ll explain more in January). That probably won’t send Flynn to prison, but it should be recorded.

The transcripts, however, are more interesting. Bizarrely, DOJ never submitted the transcripts in this docket. Sullivan asked for them after the Mueller Report came out, but DOJ refused based on their true contention that nothing in Flynn’s case relied on the transcripts. But the Motion to Dismiss absolutely did rely on the transcripts, because it was premised on the claim that Flynn did nothing wrong on the calls. Ken Kohl even invoked them in the September hearing before Sullivan. But in spite of the fact that a selection of those transcripts were released, they were never submitted in this docket. Sullivan may be able to demand them, if only to avoid the problem of Constitutional vagueness pertaining to the scope of Flynn’s pardon, particularly with regards to what facts were known to Mueller.

That’s where things get interesting. Because DOJ made claims before Sullivan — that Flynn did nothing wrong on his calls to Kislyak — relying on the transcripts, but it specifically withheld the transcript of a call that was included in the criminal information: the December 22, 2016 call.

As I’ve noted, when ODNI released these transcripts, they didn’t even release the summary of the December 22, 2016 call included in Flynn’s charges, much the transcript.

I believe one of the facts “known to” Mueller’s investigators, but not known to us, is that Trump was present for that call, possibly even listening in. As such, it’s certainly within the scope of things for which Trump intends to pardon Flynn. But to avoid any confusion going forward that it is included, it needs to be known to us, or at least knowable to a future DOJ.

DOJ would squawk (they’ll squawk anyway, but that’s their own damn fault for writing a pardon that suffers from vagueness).

Again, I’m not saying that this provides Sullivan a way to dismiss the charges (though I see no reason why he can’t dismiss without prejudice). It doesn’t. What it does do is make a record of the true scope of the pardon.

21 replies
  1. Fraud Guy says:

    4th from last paragraph (after redacted screenshot): “much [less] the transcript.

    Delete after edit or retention.

  2. foggycoast says:

    if the pardon includes unconstitutional provisions who would have standing to challenge it in court? is it even allowed to be challenged after it is granted (presumably it cannot be challenged until it is granted)?

  3. Mitch Neher says:

    It’s a “negative pardon.” Flynn has been pardoned for acts that are supposedly not criminally wrongful.

    Oddly enough, such a negative pardon might leave intact the recipient’s Fifth Amendment right against self-incrimination.

    It’s probably the sort of pardon that Trump has in mind for himself and his family–who also supposedly “haven’t done anything wrong.”

  4. Eureka says:

    The vagueness of this pardon (template) creates a whole bunch of liminal spaces that I think lots of folks aren’t anticipating. For example, many are celebrating in advance the loss of 5A protections by all of these expected pardonees, but the pardonees can just as well live in the ambiguity, just as easily cite a 5A privilege under any such future questioning, hedging that they are not sure that the(se ongoing or hypothetical, future) matters relate to pardoned crimes (while near-simultaneously asserting that, well, they have been pardoned, in any case. Schrodinger-esque. Not the first time for these folks. Also, lots of the criming / evidence overlaps). Ambiguity would bury these (again, hypothetical, yet already being celebrated) requests for testimony in litigation for a very long time. So, sure — the more specific the questioning to an element specific to a specific aspect of this pardon (template), the more certainly any Fifth Amendment privilege is waived. [And yet there may be daylight, still.]

    So there are lots of reasons to nail things down as EW writes.

    Separate issue, and I’m going more metaphorical here: the pardoning of anything arising from Mueller would also seem to be an *attempt* to cover things that may come up in state or other jurisdictional cases. For investigations in other jurisdictions, I anticipate that anyone pardoned by this template would try to make so-called fruit of the poisonous tree-like — *like* — claims (~ 4A meets Unitary Executive). I guess there’s not long to wait and see what they do assert about non-federal jurisdictional cases borne from Mueller evidence. Flagrant, unbound speciousness from Trump-affiliated sideshows like Rudy aside, the FedSoc-ers are Manifest Destinying the law at every opportunity. Given their predictability at that project, it’s not a fault of logic to suspect they wrote the pardon (template) this way towards those very aims, among others. I think they are _aiming_ to play pardon finger trap more than jenga.

    • Mitch Neher says:

      According to the link below the phrase was coined by John O’Sullivan.…/manifest-destiny

      Manifest Destiny, a phrase coined in 1845, is the idea that the United States is destined—by God, its advocates believed—to expand its dominion and spread democracy and capitalism across the entire…

    • Eureka says:

      Elizabeth de la Vega on one of the chief examples I had in mind:

      “What offenses does Flynn think he’s been pardoned for? For some purposes, say, an indictment w/in the broad pardon language, he’ll say, “everything.” For other purposes, say, testimony before Congress, he’ll assert the 5th as to any matter not explicitly detailed in the pardon.” […thread…]
      4:06 PM · Dec 4, 2020

      EW QT’s her; see their discussion here — a more specific context as to how Judge Sullivan may be able pluck this Flynn pardon out of the (defective) black hole:

      “This might be a better way of getting to scope.”
      4:14 PM · Dec 4, 2020

  5. PeterS says:

    I may be alone here, but I don’t understand how Sullivan has the right to explore the scope of the pardon, beyond establishing whether it covers the specific crimes currently before his court.

    • Bo Bo says:

      Sullivan was so outraged at the information he had access to, that the public never had access too and there were/are more crimes that Flynn can be charged with and the Judged specifically called his crimes “treason”. There are likely severability issues as well. Sullivan has a duty to assess the validity of said pardon.

      This case is going to set important precedence, so attention to detail is critical. Many are not ready to admit this, but we came closer to a coup installing tRump as a dictator than many know.

      While it is correct to describe pardon powers granted by our flawed Constitution, which institutionalized slavery and created other injustices, as absolute; that does not mean that there are no boundaries. Sullivan needs to know more about the corruption that appears to underlie these pardons — for example, it may be material if there were bribes.

      Finally. though I am sure some highly-qualified people will share more, pardons by tweet are not a thing. How the pardon is specifically written is a thing.

      • bmaz says:

        No, that is NOT what Sullivan did. What Emmet did do was ask DOJ prosecutor Van Grack if Flynn’s conduct “rises to the level of treasonous activity?” And Sullivan, and rightly so, quickly walked even the question back. Far too much importance is placed on a faux pas question.

          • bmaz says:

            Oh, Sullivan seemed genuinely incensed. And undoubtedly properly so. Got a little ahead of his skis, realized it, and walked it back. Which was right to do. But there is something there.

    • earlofhuntingdon says:

      That is entirely the point, or a point. The scope language is vague enough that it allows Sullivan to inquire into exactly what’s covered. Saying it includes “everything in your jurisdiction regarding Michael T. Flynn” is not sufficient. The only earlier example of a pardon remotely as broad as this was Richard Nixon’s, and it was never tested in court.

    • Alan Charbonneau says:

      I couldn’t get through five paragraphs before deciding my sanity was better off not reading his opinion. It reminds me of how I felt in the late 1960’s when Johnson/Nixon spokespeople were on a show like Meet the Press.

      They knew so much more about Vietnam and the war there than I did, it’s as if my knowledge were a cup of water and theirs was Lake Superior. Yet I still thought they were full of crap, their erudition notwithstanding.

  6. stancat says:

    I don’t understand what EW means by “unconstitutional vagueness” in this context. This must be different from the vagueness doctrine involving due process concerns about a statute that unfairly fails to delineate the scope of prohibited conduct. Is this an intended reference to the specificity that some claim is required for a valid pardon?

  7. Spencer Dawkins says:

    I’m hoping someone knows more about this than I do, but …

    I think Flynn is still retired military, so covered by Uniform Code of Military Justice – at least I’m seeing that asserted in various places.

    If so, would they be curious about this (perhaps only under a Biden presidency)?

    I’m thinking if so, they might also be curious about him calling on Trump to suspend the constitution and declare martial law … kind of an awkward position for a soldier to be in.

    • earlofhuntingdon says:

      Prior standard was that anyone still drawing pay and benefits – such as a retiree – remained subject to UCMJ. Recent changes acknowledge that that prolonged jurisdiction may be unconstitutional.

      Under the present circumstances, anyone called by Trump to help suspend the Constitution should know that the demand is unlawful.

      • bmaz says:

        There is literally a very recent court of military appeals decision (in a case argued by our friend Steve Vladeck) that says continued jurisdiction is wrong.

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