Michael Flynn, President Donald Trump’s former national security adviser, pleaded guilty earlier this month to lying to the FBI about his interactions with Russian government officials — and the president might pardon him.
On Friday, a reporter asked Trump about whether he was considering pardoning Flynn. “I don’t want to talk about pardons for Michael Flynn yet,” Trump responded. “We'll see what happens. Let's see.”
Trump could have easily said, “No, I won’t pardon Flynn.” Instead, he refused to rule out pardoning the former three-star general whom Trump fired in February for lying to Vice President Mike Pence about the same conversations Flynn also apparently lied to the FBI about. Ty Cobb, the White House attorney defending against the Mueller probe, told CNN “there is no consideration being given to pardoning Michael Flynn at the White House.”
Flynn has done a lot more shady stuff than just lying to the FBI that one time. He received more than $65,000 in speaking fees from RT, Russia’s state-owned propaganda outlet, and improperly claimed that money came from “US companies.” He lobbied on behalf of the Turkish government right up until he became the national security adviser. He reportedly participated a secret plot to kidnap Fethullah Gülen, a Turkish Muslim cleric living in the United States whom the Turkish government considers an enemy of the state, and take him back to Turkey.
And throughout the presidential transition, Flynn had several contacts with Sergey Kislyak, the Russian ambassador at the time. In one early December meeting at Trump Tower, he and Trump senior adviser and son-in-law Jared Kushner talked to Kislyak about setting up a secret channel through which they could communicate.
But despite all of that questionable but not necessarily illegal behavior, Flynn got off pretty lightly, with just one count of lying to the FBI. And now there’s a very real possibility that Trump will pardon Flynn for that — and no one can really stop him.
The president’s power to pardon federal crimes is basically unlimited
The president has the ability to pardon almost anyone he wants. As my colleague Dylan Matthews reports:
The Supreme Court actually ruled on this matter in the 1866 case of Ex parte Garland. That decision concerned a law Congress passed disbarring former members of the Confederate government, which was challenged by former Confederate Sen. August Hill Garland. President Andrew Johnson had pardoned Garland, and Garland argued that this shielded him from disbarment under the law. The Supreme Court agreed, and in doing so clarified that the pardon power is basically unlimited and can be applied to any crime, whether the pardoned person has been charged or not.
“By the second section of the second article of the Constitution, power is given to the President 'to grant reprieves and pardons for offences against the United States, except in cases of impeachment,’” Justice Stephen Field wrote. “With that exception the power is unlimited. It extends to every offence, and is intended to relieve the party who may have committed it or who may be charged with its commission, from all the punishments of every description that the law, at the time of the pardon, imposes.”
Trump already pardoned one person this year: Joe Arpaio, the former sheriff of Maricopa County, Arizona, who was convicted of criminal contempt of court for violating a federal court order meant to prevent racial profiling.
But it’s still unclear if Trump will pardon Flynn, or the three other members of the Trump campaign charged with crimes: former campaign Chair Paul Manafort, his business associate Rick Gates, and Trump campaign foreign policy adviser George Papadopoulos. Papadopoulos pleaded guilty to his charges and is now actively cooperating with the Mueller investigation.
But the fact remains that the president refuses to say he won’t pardon Flynn — but that’s his prerogative.