Failsons and Kraken Conspiracies: Three Mike Flynn Hypotheticals Trump May Have Tried to Preemptively Pardon

In a hearing in the BuzzFeed FOIA case today, Judge Reggie Walton (who always likes to chat about his conversations with his colleagues in the Prettyman judge’s dining room), said the Flynn pardon might be too broad.

U.S. District Judge Reggie Walton said at a hearing Friday that he doesn’t think U.S. District Judge Emmet Sullivan, his colleague presiding over the Flynn case, “has a lot of options in reference to what he does” after the pardon was granted, “unless he takes the position that the wording of the pardon is too broad, in that it provides protections beyond the date of the pardon.”

“I don’t know what impact that would have, what decision he would make, if he makes that determination that the pardon of Mr. Flynn is for a period that the law does not permit. I don’t know if that’s correct or not,” the judge continued. “Theoretically, the decision could be reached because the wording in the pardon seems to be very, very broad. It could be construed, I think, as extending protections against criminal prosecutions after the date the pardon was issued.”

“I don’t know if Judge Sullivan will make that determination or not,” Walton added.

Walton seemed to be suggesting that Sullivan might have a way to hold Flynn accountable in the future, unless the pardon as written is too broad.

That has set off a debate among Legal Twitter arguing what the pardon should mean, not what it does say.

To be sure, the first part of the Flynn pardon is undeniably valid. It pardons Flynn [I’ve added the numbers; which are different from the less helpful ones DOJ uses in their motion],

(1) for the charge of making false statements to Federal investigators, in violation of Section 1001, Title 18, United States Code, as charged in the information filed under docket number 1:17-CR-00232-EGS in the United States District Court for the District of Columbia; (2) for any and all possible offenses set forth in the Information and Statement of Offense filed under that docket number (3) or that might arise, or be charged, claimed, or asserted, in connection with the proceedings under that docket number

This is already too broad, for one reason I’ll get into. But on its face, that language pardons:

  1. The false statements as laid out in the criminal information
  2. The crime of being an undisclosed foreign agent for Turkey, lying to DOJ about it, and conspiring to lie about it
  3. The lies Flynn told Judge Emmet Sullivan in a bid to get out of his prior guilty allocutions

Those are, incidentally, the crimes laid out in the government’s motion to dismiss the case as moot.

The pardon not only encompasses the Section 1001 charge that is the subject of the government’s pending motion to dismiss (Doc. 198), but also any possible future perjury or contempt charge in connection with General Flynn’s sworn statements and any other possible future charge that this Court or the court-appointed amicus has suggested might somehow keep this criminal case alive over the government’s objection (e.g., a charge under the Foreign Agents Registration Act, Section 618(a), Title 22, United States Code, arising out of the facts set forth in the Statement of Offense).

There is nothing controversial about this part of the pardon (aside from the rank corruption of it). It is clear that the pardon is intended to and does cover those crimes that Flynn committed.

But the pardon goes beyond pardoning Flynn for those crimes. It also pardons Flynn for,

any and all possible offenses within the investigatory authority or jurisdiction of the Special Counsel appointed on May 17, 2017, including the initial Appointment Order No. 3915-2017 and subsequent memoranda regarding the Special Counsel’s investigatory authority; and any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel, including, but not limited to, any grand jury proceedings in the United States District Court for the District of Columbia or the United States District Court for the Eastern District of Virginia.

As I noted, it purports to pardon Flynn for any crime that arises out of “facts … known to … the investigation of the Special Counsel,” any crime related to it, or anything arising from the grand juries (not time denominated or named) that investigated Flynn.

I think that is an attempt to stave off any crimes based off information collected as part of this investigation, even if the crime happens in the future. Here are three not-at-all unlikely scenarios:

Flynn reneges on his sworn testimony in a retrial against Bijan Kian in which Mike Flynn Jr also gets charged

Flynn’s partner, Bijan Kian, was found guilty of conspiring to lie about working for Turkey with Flynn in 2016. But then the judge in the case, Anthony Trenga, overturned that verdict. The government is appealing his order. One possible outcome of that appeal is that the government will retry Kian. With Flynn’s plea deal off the table, the government would be free to include Flynn Jr in any potential retrial.

Flynn testified to an EDVA grand jury, under oath, that he knew that he (and so by association, his son and Kian) were secretly working for the government of Turkey in 2016. Prosecutors made a last-ditch attempt to make Flynn a co-conspirator in Kian’s last trial. In a superseding indictment they could make him an unindicted co-conspirator (which would make his communications admissible without his testimony). But it would be very useful to have his testimony as well.

Normally, prosecutors could force a witness to hew to his grand jury testimony on penalty of perjury. In this case, however, Trump has purported to pardon Flynn for anything pertaining to that grand jury. If Flynn lied at trial, could he be charged?

The government discovers further evidence of Flynn’s work as a foreign agent by tying Mueller evidence to evidence withheld

In both the case of Trump outreach to Russia and the case of Flynn’s work with Ekim Alptekin, there’s reason to believe that Flynn and — in the former case — the Trump campaign succeeded in withholding information for the entirety of the Mueller investigation but which DOJ discovered afterwards (I won’t get into the details of what that is here — again, I’ll say more in January).

Flynn’s lies about this information to Mueller or EDVA prosecutors clearly are covered by the pardon.

But if the information reflected an ongoing relationship — existing even now! — with either Russia or Turkey, it would impose registration requirements on Flynn. The government might argue, however, that because these relationships began prior to the period of the Mueller investigation and might never have been discovered if not for the warrants and subpoenas used in the Mueller or EDVA investigations, they are therefore related and Flynn’s prospective failure to register is covered by his pardon. I’m suggesting that the government seems to want to set up a claim that anything that stems from the Mueller investigation would be fruit of a poisonous tree and immune from prosecution.

An ongoing Kraken conspiracy to pay off the pardon

Sometime in the summer, Sidney Powell told Trump not to pardon Flynn, something she entered into the docket before Sullivan by admitting it in the September hearing. She also admitted to Sullivan she had talked repeatedly to Trump’s campaign “lawyer” Jenna Ellis about Flynn’s case. In the following weeks after she spoke with Trump and Ellis, prosecutors fed her information from Jeffrey Jensen’s investigation — some of it altered — that ultimately served as part of a Trump attack on Joe Biden.

Then, after the election, Powell — at first claiming to be representing Trump — took a lead role in undermining the legal outcome of the election in multiple states. Almost immediately, purportedly because Trump believed that Sidney Powell made him look bad in a way that Rudy and Jenna Ellis and Joe DiGenova did not, Trump made clear to distance himself from Powell. The next day he pardoned Flynn. Days later, Flynn called for a coup to overturn the election.

Powell’s use of evidence in Flynn’s case to support false campaign attacks on Joe Biden is already irretrievably tied to Sullivan’s docket. Indeed, he now has real reason to question why Powell was talking with Ellis about this case, why (before the document alteration was discovered) she affirmatively asked Trump to hold off on the pardon only to embrace it later, and what tie there is between the altered documents and the attack Trump launched in the first debate against Biden. Judge Sullivan has reason to ask whether the fraud on the court in this docket is tied to some benefit for Trump, and whether that benefit in some way is tied to the pardon.

But if there is a tie, Sullivan (and Joe Biden’s DOJ) may have reason to ask whether this is a continuing conspiracy, whether Powell and Flynn’s actions after the pardon are part of delivering on a corrupt agreement made before the pardon. It is easy to see how the fraud on the court that remains before Sullivan could be tied to ongoing actions.

DOJ would seem to suggest that those actions, too, are covered by Trump’s pardon.

Again, all three of these scenarios are easily foreseeable. They are the actual fact patterns before Judge Sullivan and a potential Biden Administration.

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49 replies
  1. Savage Librarian says:

    Extirpate

    Some chickens have flown the coop,
    Others have come home to roost,
    We’ve seen how low some can stoop,
    He plucks ‘em all as they’re juiced.

    Weekends he passes a collection plate,
    Early, before an election date,
    In the midst of a tense debate,
    Pundits reflect on a defection rate.

    Give him an inch, he takes a mile,
    Some cover his stench all the while,
    Or shout from a bench, “Heil, Heil,”
    It’s a cinch ‘cause that’s their style.

    Donald relishes this extra wait
    to line his pockets for a better fate,
    So for unpaid dues and extra freight,
    We the People shout, “Extirpate!”

    Some chickens have flown the coop,
    Others have come home to roost,
    We’ve seen how low some can stoop,
    He plucks ‘em all as they’re juiced.

  2. Rugger9 says:

    However, Flynn’s call for sedition violates an act from 1940 (Smith Act?) that had been used to go after seven left-wingers / union types from Seattle and went all the way to SCOTUS who upheld it. It is apparently still on the books. Would the pardon language cover that? I do not think so.

  3. joel fisher says:

    How soon can his lyin’ ass be under oath and committing perjury? There will be plenty of opportunities for Flynn to lie under oath unless he really changes–haha–and becomes a guy who tells the truth. If he were to stop with the lies and reveal all it would be worth it to me to find out what he’s been sitting on. I’m not hell bent on punishment, but I am hell bent on getting the whole sordid mess on the public record.

    • harpie says:

      Emphatically agree with: I’m not hell bent on punishment, but I am hell bent on getting the whole sordid mess on the public record.

    • jerryy says:

      It will come out into the public’s view soon enough. Punishment? Yes, No? But when is enough enough?

      In just my lifetime we have had:

      Nixon and Kissinger sabotage the Paris Peace Talks (these were held to put an end to the war in Viet Nam — the talks failed because of the interference and the killing continued on). President Johnson did nothing.

      Kissinger went on to support the Khmer Rouge —hundreds and hundreds of thousands of Cambodians were murdered.
      Kissinger went on to support the Shah of Iran. Among other things, the Shah’s prisons were the most feared in the world because of the brutality practiced there. During the Iranian Revolution, the Shah would be tossed out of the country and given refuge in the United States because of Kissinger’s efforts. Kissinger has yet to be held accountable for any of this.
      President Nixon went on to become involved in that whole Watergate mess. He was pardoned for this by President Ford.

      The Iranian Revolution led to the hostage crises which lead to the Iran-Contra mess involving soon to be President Reagan and Vice President Bush. Sell Cocaine to get money for Guns to trade for Hostages. That mess. They did not even get a slap on the knuckles. I do not think it is much of a stretch to suppose that George W. Bush saw the lack of repercussions. He lied us into the Iraq War against Saddam Hussein who supposedly had a bunch of weapons he was going to use against us to finish the job he did not take part in on September 11. Millions died there. President Bush has not been sanctioned either.

      Now President Trump.

      When is enough enough? We have been seeing justice turn into just-us. So when does the idea that no one is above the law mean it applies to everyone?

      • earthworm says:

        Is this OT?
        Kraken Conspiracies: “He Wuz Robbed”
        This is what I think happened in the election and 74 million Americans ‘casting votes’ for Donald Trump:
        Context: DJT has to win, due to legal precarities, personality tics, etc. Via a sophisticated incursion of voting machines, he is planned to be the winner. (Which DJT knows about and fully expects to be successful.)
        However, the pandemic-influenced decision to vote by mail, at rates unlike ever before, and generally very high voter participation, flummoxed the hack.
        Hence, the hysterical, false claims of hacking and fraud and the bitter inveighing against mail-in ballots, plus the 74 million votes.
        Remember DJT saying “Joe Biden can only win by a ‘rigged election.’ ”? Project onto others your own conspiracies! It was fixed for Trump to win, and he didn’t. Therefore he “wuz robbed” of his expected fix and he is genuinely aggrieved.

      • vvv says:

        Wikipedia seems to say total casualties attributable to the Iraq war were between approx. 461K and 1.033M.
        I generally agree with the rest of your post.

      • joel fisher says:

        I don’t blame the criminals for anything more than their crimes. The blame for our ongoing ignorance should go to the Democrats, who took over in force in ’77, ’93, and ’09 and seemed remarkably incurious about the facts. One wonders if 2021 will be any different.

        • P J Evans says:

          You seem to assume that they had all the information from the previous administration available to them. This appears to be questionable, at best.

          • Troy P says:

            I think the issue is that the Democrats did not even try to get all of the information. My fear is we will have more of the same with Biden. I understand the need for unity, but I think the need to understand just what the hell has happened in the last 4 years is more important.

      • RSS says:

        “It will come out into the public’s view soon enough. Punishment? Yes, No? But when is enough enough?

        In just my lifetime we have had:

        Nixon and Kissinger sabotage the Paris Peace Talks (these were held to put an end to the war in Viet Nam — the talks failed because of the interference and the killing continued on). President Johnson did nothing.

        Kissinger went on to support the Khmer Rouge —hundreds and hundreds of thousands of Cambodians were murdered.
        Kissinger went on to support the Shah of Iran. Among other things, the Shah’s prisons were the most feared in the world because of the brutality practiced there. During the Iranian Revolution, the Shah would be tossed out of the country and given refuge in the United States because of Kissinger’s efforts. Kissinger has yet to be held accountable for any of this.
        President Nixon went on to become involved in that whole Watergate mess. He was pardoned for this by President Ford.

        The Iranian Revolution led to the hostage crises which lead to the Iran-Contra mess involving soon to be President Reagan and Vice President Bush. Sell Cocaine to get money for Guns to trade for Hostages. That mess. They did not even get a slap on the knuckles. I do not think it is much of a stretch to suppose that George W. Bush saw the lack of repercussions. He lied us into the Iraq War against Saddam Hussein who supposedly had a bunch of weapons he was going to use against us to finish the job he did not take part in on September 11. Millions died there. President Bush has not been sanctioned either.

        Now President Trump.”

        When is enough enough? We have been seeing justice turn into just-us. So when does the idea that no one is above the law mean it applies to everyone?”

        Kissinger, Nixon, Reagan, and Carter all escaped accountability for this list of atrocities. But these were elected governments representing the US people, who have thankfully been held accountable of sorts. Endless wars and the sacrifice of blood and treasure in the Middle East has been borne by the US people writ large. Also suffering for four years under the foreign influenced Trump regime and the lasting damage it will cause is in the least, a bit of well deserved karma for the residents of the “good ole US of A”

  4. Chris.EL says:

    I concur with any and all urges to get all lies and evil maneuvers revealed; however, do not want to give the current administration any chance *whatsoever* or opportunities to fix the pardoning holes in their outgoing wall of obstruction. [Right?!!?]
    ~~~~~~~~~~
    this is a little off topic, *fine EW people*, but just had to share:

    From Twitter, “Conversation
    The Hoarse Whisperer
    @TheRealHoarse
    Genius Ashley here bragged about the NY Young Republicans breaking COVID restrictions.

    They were in New Jersey not New York.

    NJ’s Governor is Phil Murphy not Andrew Cuomo.

    He caught them. Now the restaurant is shut down.

    Nice work, Ashley.

    (and Matt Gaetz)

    Ashley StClair” …

  5. Desider says:

    1) with demonstrable lies, how much of a trustworthy witness against Bijan Kian would Flynn be?
    2) surely (I think?) a full pardon can’t be considered to cover further (since the pardon) contempt against Sullivan
    [kinda similar question as to what scenarios would give ABJ right to respond against Stone after his pardon, considering the crosshairs threat, anything else?]
    3) while 6 weeks isn’t that short, could Trump’s term run out before the scope of this pardon(s) is nailed down?

    • subtropolis says:

      One hopes that the scope is not tested in court before his term runs out. What once seemed very long odds is now shockingly possible: Trump is gone before Flynn meets his fate.

  6. pseudonymous in nc says:

    Yeah, this is about bending space and time to pardon future crimes, on top of the issue raised by Aaron Rappaport’s scholarship on whether a grantor can pardon offenses that are unknown or unknowable at the time.

    If you step back, this kind of pardon language essentially bestows sovereign immunity on individuals for an indefinite period. It ought to be litigated.

  7. AndTheSlithyToves says:

    FLYNN ON FOX: Recently pardoned former national security adviser retired Lt. Gen. Michael Flynn said on Fox yesterday that he almost didn’t accept the pardon President Trump offered him just before Thanksgiving.
    “My family and I, particularly my wife and I, talked about it and honestly prayed over it, we came to the conclusion that this was the right moment in time to do this,” Flynn told Fox Business anchor Lou Dobbs. “The justice system that we were facing was just not going to function properly, so, we went and made the decision that this was the direction that we wanted to go, and good enough for President Donald Trump for coming through. And we’re certainly grateful to him.”
    “This was a political persecution of the highest order, and not something that any American should ever have to go through,” Flynn said. “This was a setup from the beginning. And it really — where accountability lies is, it lies in the previous administration.”
    Yah, Mikey. It’s all Obama’s fault that you are such a psychotic loser.
    Unfortunately, Al Franken has taken the perfect title for a book about Trump’s administration: “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right”

    • Alan Charbonneau says:

      “…talked about it and honestly prayed over it…”
      We should all feel relieved — God told him to accept the pardon.
      Aaarrrggghhh!

      • bmaz says:

        Maybe it is just a touch of cynicism by me, but didn’t “God” tell him to plead guilty? He did swear under oath after all. Not “twice” as so many in the media keep bogusly claiming, but just one guilty plea with an initial allocution, and then a subsequent confirmation thereof. But only one plea. Did “God” mislead Flynn there, or naw?

          • Alan Charbonneau says:

            I’m an atheist married to a Christian. While I have an appreciation of how people can turn to prayer in time of stress, this showboating type of “faith” more than leaves me cold.

            It’s the utter bullshit of a Tartuffe, not the expression of deep-seated beliefs by good people.

        • subtropolis says:

          He meant, “I prayed, because I am such a devout servant of god — believe me!” Yeah, some people are saying …

    • viget says:

      Thank you, idiot Mike Flynn for just admitting that accepting a pardon is an act you contemplated.

      I agree with Marcy on this pardon, but I go a step further with the Kraken conspiracy. If the object of the conspiracy was to obstruct justice (literally!) and to defraud the US from say a fair election, then by accepting a pardon, one commits an overt act in furtherance of the conspiracy. Thus although you are “pardoned” for the conspiracy, in being pardoned, you just reestablished your role in said conspiracy. Which, I think means you could be charged again, as you committed a crime that postdates the pardon.

      No matter how you may try, you cannot get out from under that, kind of like how infinity is always unreachable as you can always think of a bigger number than the one you just postulated.

      Another way to say this in logical terms is that because we posit that a pardon of crimes not yet committed is not possible, merely accepting the pardon causes the pardon to be self-contradictory, because the act of accepting establishes a crime not covered by the pardon itself.

      • ThoughtMail says:

        I’m liking the re-entrant logic (meta- ?) of this. Just not sure how practicable it might be. Liminal?

    • anaphoristand says:

      To understand the particular dog whistle of Flynn’s ‘prayers’, the recent documentary “People You May Know” (https://www.imdb.com/title/tt12606876/) does a great job of tracking the GOP’s big data project in evangelical churches and its connection to Trump’s reelection campaign and its larger info/disinfo project(s) as steered through the Council for National Policy (https://www.washingtonpost.com/investigations/council-national-policy-video/2020/10/14/367f24c2-f793-11ea-a510-f57d8ce76e11_story.html).

  8. earlofhuntingdon says:

    Historically, a pardon can only cover crimes attempted or committed, or which could have been attempted or committed, on or before the date of the pardon.

    How would the Supremes extend the pardon power to cover crimes referenced on or before the pardon, but committed after it? The Reactionary Five might find a way, but they would be opening Pandora’s Box.

  9. N.E. Brigand says:

    I appreciate what Elizabeth de la Vega today argued (that you noted on Twitter): it’s a Heisenberg pardon that Flynn can use to claim both that he was and wasn’t pardoned for any particular crime (in the latter case by invoking his Fifth Amendment rights to avoid testifying).

    • bmaz says:

      Eh, that is not how it works. Flynn has no more 5th protection for federal crimes, and most of his crimes do not equate easily to state law crimes. Dual jurisdiction complicates things, but this has been dealt with before, ands nothing really overlaps here. The real question is whether the court or Biden DOJ will desire to pursue it.

      • N.E. Brigand says:

        Sure, but suppose Flynn is called before Congress to testify about some aspect of the Trump-Russia affair that Trump and Flynn don’t want public: what’s to stop Flynn from invoking his right against self-incrimination on the grounds that what they’re asking about actually isn’t covered by his pardon? Because it touches on facts not “known” to Mueller? Who could prove whether that’s true or not? (Could Congress get around this by granting him full immunity for anything he testified to?)

    • Rayne says:

      I think you really mean not the uncertainty principle but that it’s a Schrödinger’s pardon, like the model paradox in which the unseen boxed cat exists in a superimposed state, alive and dead at the same time.

      But a pardon which absolves crimes which haven’t been identified or yet happened isn’t a pardon — it’s an ex post facto blank check, a letter of marque, a carte blanche. Only autocratic monarchs can waive punishments for future and undetermined crimes and we are not a monarchy.

      Which is why the example of Schrödinger’s cat as a model doesn’t really work; as soon as the cat is observed, we know its state and the superimposition collapses. Schrodinger’s pardon shouldn’t be an option for the same reason: as soon as we observe and identify a crime in progress or in the future, the executed pardon is a carte blanche and not a pardon. It can only be a pardon for the crime indicted, admitted, prosecuted. It cannot be an ex post facto rolling pardon.

      Many have pointed to Ford’s pardon of Nixon — a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States — as overbroad. There are two clauses in the pardon which limit it, though.

      As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. …

      The certain acts were the focus of the investigation and drafted articles of impeachment; they were spelled out, though “abuse of office” isn’t as specific as a violation of the law like false statements. The time range specified, from January 20, 1969 through August 9, 1974, also limited the pardon.

      I have a feeling the crime is still in progress and Trump is trying to ensure it reaches completion whether he is or isn’t in office, hence the attempt at superimposition of a pardon/carte blanche for an admitted crime/crime in progress.

        • Rayne says:

          Oh I can see why you reached for Heisenberg’s uncertainty principle, though; with the particle’s location defined, the speed is undetermined. In spite of all the definitions applied to Flynn’s crime, no one can tell exactly what Trump is aiming to protect with his pardon as published.

  10. Mitch Neher says:

    . . . any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel . . .

    In the event that Flynn were indicted for some “possible offense” that the Special Counsel had known about, wouldn’t the pardon language above shift the burden of proof to Flynn to show that the Special Counsel had known about “that particular, possible offense” that the Special Counsel had not previously indicted?

    That is, in order for Flynn to avail himself of the pardon’s protections.

    Also, how do I get my typing fingers untwisted??

  11. vvv says:

    A *randumb* thought; is there any real possibility of state charges against Flynn re the alleged plot to kidnap Gulen?

  12. Zirc says:

    “The government might argue, however, that because these relationships began prior to the period of the Mueller investigation and might never have been discovered if not for the warrants and subpoenas used in the Mueller or EDVA investigations, they are therefore related and Flynn’s prospective failure to register is covered by his pardon. I’m suggesting that the government seems to want to set up a claim that anything that stems from the Mueller investigation would be fruit of a poisonous tree and immune from prosecution.”

    Interesting language. As of noon, January 20, 2021, what the Government says and wants could very well change. If Flynn is charged for some other crime and some aspect of the charge is challenged by a defense lawyer based on the claim that it is covered by the pardon, who determines what the pardon covers, the Govt in charge now or the one in charge then?

    Zirc

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