A lot of lawyers are arguing about what Judge Emmet Sullivan might do now that Donald Trump has [tweeted out a claim that he had] pardoned Mike Flynn.
It’s useful to see how something similar happened with Roger Stone. The Mueller Report made an extended case that both of them (along with Paul Manafort) had been encouraged to lie with a pardon dangle. In Stone’s case, as with Flynn, Bill Barr took unprecedented steps to try to overturn the prosecution. Then, in both cases, Trump intervened in an attempt to protect the people who had protected him.
So Stone’s docket should provide a hint of what might happen with Flynn’s pardon.
Stone’s commutation didn’t show up on DOJ’s list of commutations for several days (the commutation was issued the Friday before the Tuesday Stone would have reported). Three days later, however, DOJ posted Stone just like they had other grantees.
But DOJ didn’t inform Judge Amy Berman Jackson of their own accord. She had to go to DOJ, on the Probation Office’s behalf, to ask WTF. She ordered the parties to provide proof of the commutation, including details on how much of Stone’s punishment it covered.
When law professors who had no standing tried to intervene — based on some of the same theories that people are floating in this case — ABJ rightly denied their motion to file as amici.
As noted, I suspect something similar will happen next week where the terms of Flynn’s pardon will be submitted to his docket. All that said, until something does land in the docket — and for some of the pending motions, even afterwards — Sullivan is still entitled to proceed as he has been, writing an order for the motion to dismiss. Even after that, there are several topics — what to do about Flynn’s perjury before him and before the grand jury, what to do about Flynn’s motion to withdraw his plea (which may pertain to DOJ’s ability to charge Flynn or his son on FARA charges), and what to do about DOJ altering documents submitted to Sullivan — that Sullivan might rightly weigh in on.
DOJ may have an incentive to shorten the amount of time in which Sullivan can do that.
But there is absolutely no reason to believe that Sullivan would challenge the pardon, nor is there reason to believe he’d respond any differently if someone else tried to.