The Best Case For A Flynn Pardon May Be The Conduct Of The Court Rather Than The Defendant

President Donald Trump is reportedly considering a pardon for his former National Security Adviser Michael Flynn this week. As someone who has long opposed Trump’s pardons of Trump associates like Roger Stone and  Joe Arpaio, I do not come easily to the idea of pardon for someone like Flynn. However, the strongest case for a pardon for Flynn was not made by his lawyers as much as his judge, the Honorable Emmet Sullivan. Sullivan’s continued controversial actions in the case could be cited as a credible, if not a compelling basis, for a pardon of Flynn.

I have been a long critic of the Flynn prosecution for a variety of reasons. First, Flynn was targeted due to his communications with Russian diplomats shortly before becoming national security adviser. There is nothing untoward, unlawful, or even uncommon in such meetings weeks before a new administration. Nevertheless, former FBI Director James Comey decided to send in agents to interview Flynn without the presence of the White House counsel. Comey later bragged that that he “probably wouldn’t have … gotten away with it” in other administrations, but he sent “a couple guys over” to question Flynn. Former acting Attorney General Sally Yates was irate at the move and described Comey as going “rogue” in the move.

Second, Comey himself reportedly told then President Barack Obama and Vice President Joe Biden that the FBI thought the meetings with the Russians was “legit.” Moreover, at the interview, Flynn stated that he assumed that the agents already had a transcript of the conversations (which they did), and the two FBI agents did not believe that Flynn intentionally lied to them about the details of the conversations.

Third, the effort to criminally charge Flynn had fallen apart by the end of December 2016. On January 4, 2017, the FBI’s Washington Field Office issued a “Closing Communication” that said it was terminating “CROSSFIRE RAZOR” because it found no evidence of criminal conduct. They were prevented from closing the case by fired FBI Special Agent Peter Strzok, who expressed vehement opposition to Trump being elected as president. When the investigation collapsed, White House and FBI officials reportedly debated any other possible way to charge Flynn, including using the Logan Act which is widely viewed as unconstitutional (and has never been used to secure a single conviction against anyone). The Justice Department later charged Flynn and, after draining him of most of his money and threatening his son with prosecution, secured a plea to a single count of lying to federal investigators. (Yes, those same investigators who did not think that Flynn intentionally lied to them).

This barely scratches the surface of the irregular and abusive handling of the Flynn case.  However, while his lawyers made strong arguments in court, that alone would not justify a pardon from a president who has such a close personal and professional relationship with Flynn. Then came Judge Sullivan.

From the outset, Sullivan’s handling of the case was unsettling and irregular. This should have been a simple sentencing on a simple criminal count.  After all, Flynn cooperated with federal prosecutors and even uncooperative witnesses like Alex Van Der Zwaan received only 30 days in prison on a similar charge. However, in his first sentencing hearing, Sullivan blew up the proceedings with a bizarre diatribe. Using the flag in court as a prop, Sullivan falsely accused Flynn of being an “unregistered agent of a foreign country while serving as the national security adviser” who sold his country out. Sullivan even suggested Flynn should have been charged with treason, then suggested he might ignore any recommendations and send Flynn to jail when he declared, “I cannot assure you that if you proceed today, you will not receive a sentence of incarceration. I am not hiding my disgust and my disdain.”

Sullivan apologized for some of his comments, but Flynn wisely waited on sentencing. There would be two more sentencing hearings. Each time, Sullivan lashed out at the Trump Administration and refused to issue a final order. The Justice Department later filed to drop the prosecution entirely. Yet, Sullivan again refused and took the extraordinary step of inviting former judge John Gleeson to argue against dismissal of the case.  As a judge, Gleeson was himself reversed for usurping the role of prosecutors–acting (according to the Second Circuit) in a way that “would be to turn the presumption of regularity on its head.” Sullivan even suggested that he might charge Flynn himself with perjury.

Sullivan’s conduct led a D.C. panel to order him to dismiss the case, in a scathing decision over his handling and the briefing of Gleeson. At the time, I wrote that the panel should be reversed because Sullivan had not issued a final decision. Later the D.C. Circuit reached the same conclusion and, without endorsing the conduct of Sullivan, sent the case back for final decision for Sullivan to do the right thing.

Instead, in September, Sullivan refused again to issue a final ruling and stated that he “still has questions” about the case. Indeed, in the hearing, Sullivan asked about whether a Biden Justice Department might be able to reinstate the case.  It left the troubling appearance that Sullivan was prosecutor shopping, delaying the case until after an expected Biden electoral victory. With a Biden Justice Department, Sullivan still might be able to sentence Flynn.

That leads us to this pardon. The idea of Trump pardoning a former aide still sits badly with me. However, so does the conduct of his judge and the refusal to end this saga. There are no claims in the case that Flynn withheld criminal evidence against Trump. He was charged with lying about something that was not even a crime. We have a case where the prosecutors have declared that there is insufficient evidence for a charge but the judge refuses to let the defendant out of his courtroom after years of delay. Sullivan is continuing to hold on to a case that prosecutors have sought to dismiss since May. There is still no end in sight. That is why the only basis for a pardon in this case that is stronger than the conduct of defendant is the conduct of the judge in the bizarre case of United States v. Michael Flynn.

208 thoughts on “The Best Case For A Flynn Pardon May Be The Conduct Of The Court Rather Than The Defendant”

  1. I guess if anyone thinks Flynn is guilty one would have to believe the prosecution did not withhold exculpatory evidence during his trial and hold tight to the Steele dossier as an empirical document, not a bunch of lies as exposed during the Mueller investigation…oh wait a minute, Mueller under his own onslaught with dimentia (like Biden) said under oath he had never heard of said document.

  2. Turley is a cherrypicker.

    He ignores significant facts, such as:
    * The reason Flynn was interviewed is that Pence made statements on public TV in mid-January about what Flynn had told Pence re: Flynn’s conversations with Kislyak, and Pence’s public statements indicated that Flynn had lied to Pence about these conversations with a representative of a foreign adversary. Both Pence and Trump later confirmed that Flynn had lied to Pence.
    * When Flynn was interviewed, the FBI had not yet gathered all of the relevant evidence. Although the FBI agents who interviewed Flynn initially said that he didn’t give any physical indications of lying, after they’d gathered more evidence (e.g., phone call, email and texting data about the the communications between Flynn and the transition team at Mar-a-Lago prior to Flynn talking with Kislyak, evidence from K.T McFarland’s interviews), it was clear that Flynn had made false statements during the interview, and they were convinced that these were knowingly false material statements, not simple mistakes.
    * The DOJ initially claimed that Flynn’s false statements were materially false, but later said that they weren’t material, and never explained why they changed their claim. The DOJ also claimed that they couldn’t prove their case despite Flynn having already pleaded guilty.
    * The DOJ gave altered evidence to Powell.
    There are a lot more details of this sort for anyone who is trying to deal honestly with all of the relevant evidence.

    Turley claims “Sullivan falsely accused Flynn of being an ‘unregistered agent of a foreign country while serving as the national security adviser,’” but Turley doesn’t know that it’s false, and it likely isn’t. Flynn *was* an unregistered agent of Turkey. He didn’t register until March of 2017, and the EDVA indictment of Flynn included a count of acting as an unregistered foreign agent “From approximately July 2016 through approximately March 2017,” which includes the period that Flynn was NSA.

    For a very different take on the possibility of Trump pardoning Flynn:
    https://www.emptywheel.net/2020/11/25/trump-prepares-to-pardon-an-undisclosed-agent-of-turkey-as-well-as-a-thanksgiving-bird/

    1. Turley is a cherrypicker.

      He ignores significant facts

      That’s some precious projection. And all this time I had you pegged as a Liar by Omission. Thanks Cherrypicker, for what you consider the more acceptable term of your shenanigans.

      1. Notably, Olly, I provide evidence of significant info that Turley omitted, and you do not provide evidence of significant info that I’ve omitted, much less have you presented evidence of uncorrected false claims from me, like Turley’s uncorrected false claim about Sullivan.

        When you actually present some evidence about me, I’ll return the favor, and we can see who is more of a “liar by omission” and cherrypicker: you, me, or Turley.

        Meanwhile, you’re silent about the issues I raised.

          1. Alleging “crickets” isn’t evidence of “crickets,” Olly.
            Are you going to present **evidence**?

            And lest you respond that one cannot prove a negative, it is indeed possible to prove negatives: https://departments.bloomu.edu/philosophy/pages/content/hales/articlepdf/proveanegative.pdf

            Here’s a counterexample, where I noted prior to Clinesmith being indicted that I expected him to be indicted:
            https://jonathanturley.org/2020/08/05/gallup-almost-three-fourths-of-americans-view-media-as-too-biased/comment-page-1/#comment-1986860
            It’s not the only column where I commented on it.

            Is that part of what you call “crickets”? If you hear crickets, maybe you need to get your hearing checked.

            1. More Cherrypicking. If you need me to provide you evidence that’s exists in the public domain regarding fraud on the FISA court, foreign spies paid by the Clinton campaign/DNC to fabricate propaganda against Trump, etc., all the while laser-focused only on targeting President Trump, Republicans and conservatives, then you’re as dishonest as they come. Until you are able to recalibrate your “honest commitment” to some semblance of objectivity, then you’ve earned your title.

              1. You need to provide evidence for your claim, “about all the documented illegal activity on the Trump/Russia collusion boondoggle. Crickets from you, Cherrypicker.” Your claim, your burden of proof.

                Go ahead: prove that I said nothing about it.

                Simply alleging that I said nothing about it isn’t evidence.

                As for your response, “More Cherrypicking,” to my counterexample, no, counterexamples aren’t an instance of cherrypicking. If you’re going to invoke a fallacy, understand what it does and doesn’t mean.

                1. 72 Mio. Americans will remember how Flynn was selectively prosecuted, motivated by politics, while Clinton and Biden get a pass, also for political reasons, and what political party set that precedent. THAT is the take away from this. Now go find someone gullible enough to listen to your ‘healing’ sing-song.

  3. Jonathan: After commuting the sentence of Roger Stone it is understandable Trump would want to pardon Michael Flynn, another political crony. Channeling Trump AG Barr’s intervention in the Flynn case, a move opposed by career prosecutors, was unprecedented because the government does not drop a case, especially where the defendant has pled guilty, without admitting some violation of the defendant’s rights or where there is newly discovered evidence. If Trump were to issue a pardon it would not validate any of Trump’s conspiracy theories, which you support, that the FBI was out to get Flynn or that he was railroaded as part of a “deep state” plot to bring down Trump. A pardon will simply force Trump to own the Flynn case and prove once again that the pardon power has been continually abused under the reign of King Donald!

  4. OT

    “In Arizona There Were 35,000 Votes Given to Every Democrat Candidate Just to Start the Voting Off”

    – Sidney Powell

      1. The bigger question you failed to address in your stupidity is, She hasn’t presented her case to anyone yet let alone a court. cases take time to put together, you know like this Flynn case, 3 plus years later here we are. Now we are a total of 3 weeks into the gathering of info and EVIDENCE, I know that word falls on deaf ears with a liberal like you. If you had even a smidgen of honesty in you, you would know, no lawyer or at least no good lawyer would be in public throwing out their evidence before it is filed with a real court. So sit down and shut up.

  5. Bubba Clinton pardoned Marc Rich. It doesn’t get any more egregious than that.

    Barry “The Wall Street Shineboy” Obama commuted Manning’s sentence for the sole reason of hoping that Julian Assange would return to the US so Barry’s pet spooks could get a hold of him.

    Flynn did nothing wrong. He was just another victim of the Mueller Snipe hunt.

    Another example of which, would be the 13 Russians Mueller indicted for nothing but PR purposes. That case was dropped by Mueller’s “crack team” of prosecutors because they could not present a single shred of credible evidence, and the case has been dismissed.

    Of course when they were initially indicted the gang of brainless idiots in the TDS/PTS club were totally convinced that the 13 Russians were the end of Trump.

    Stupid is, as stupid does.

      1. All anyone has to do to thoroughly familiarize themselves with Stupid is, as stupid does”, is read your posts on a daily basis, Anon the ChiCom.

        You’re the poster child.

  6. It’s quite obvious that the judge has a personal vendetta against General Flynn. Whether it’s personal or political doesn’t really matter; the only thing that matters is that the bizarre handling of the case undermines public respect for the judiciary. Flynn should be pardoned and the judge should be retired to “spend more time with his family.” He has lost all credibility.

  7. ‘Barack Obama sadly will not be fact-checked by the adoring media for this lie.

    Obama ran for president saying he was against gay marriage. And he created the cages.’ @rickgrenell

    Barack Obama lies as naturally as breathing. The corrupt dishonest media lets him lie with no pushback. It’s disgusting.

  8. Flynn’s case did not require all of this ink.
    Sidney Powell’s first motion for Flynn when she entered the case was to vacate his guilty plea which was no more than an amendment of the motion by Flynn’s first lawyer to vacate his plea. Then after the DOJ filed a motion to dismiss the case, she then filed her motion to dismiss, and a motion to disqualify Judge Sullivan before she filed for the mandamus.
    The D.C. Appeals Panel did not have to reach the merits of Powell’s mandamus filing.
    Because the case had become so convoluted by the time it got to the panel, the panel could have and should have issued a one sentence per curiam order vacating Flynn’s plea which would have done no more than to return the case to the district court for a trial.
    The DOJ then could have done anything it wanted to with the case including dismissing it.
    If Flynn was so innocent, he should not have pled guilty twice, or cooperated with the Mueller investigation. Certainly, Turley would have provided a defense for Flynn pro bono because of the high media value of the case. At trial, Flynn probably would have been acquitted, and Turley could have published a book about it.
    All the jockeying and lawyering did not more than to give Trump’s political surrogates and legal commentators a topic to jaw bone about in the media.

    1. It was clear from evidence later revealed that General Flynn was coerced into a guilty plea by partisan prosecutors who threatened his family. As it was he did nothing wrong and on that basis his plea should have been vacated and the prosecutors charged. Why wasn’t Sullivan removed? His comments were so egregiously biased it was plain he was part of the vendetta.

      1. If all of what you said is correct, then the Appeals Panel could have made life easy for everyone by granting the motions to vacate Flynn’s plea.
        BTW coercion is grounds for vacating a plea.

      2. This happens to people all the time. Abused by partisan prosecutors. Why should Flynn get off when everyone else does not?

        1. Why should Flynn get off when everyone else does not?

          Just spitballing here, but just because our system of justice may fail to secure the rights of innocent people, is no reason to not demand they try to get it right.

          Your comment reminded me of this story:

          One day a man was walking along the beach, when he noticed a boy hurriedly picking up and gently throwing things into the ocean.

          Approaching the boy, he asked, “Young man, what are you doing?”

          The boy replied, “Throwing starfish back into the ocean. The surf is up and the tide is going out. If I don’t throw them back, they’ll die.”

          The man laughed to himself and said, “Don’t you realize there are miles and miles of beach and hundreds of starfish? You can’t make any difference!”

          After listening politely, the boy bent down, picked up another starfish, and threw it into the surf. Then, smiling at the man, he said …

          “I made a difference to that one.”

          Don’t be that guy.

          1. If the rich, privileged, and powerful are shielded from the harmful effects of our laws, then those laws will not get changed because those who can change it have no reason to. The only way to make our laws fair and just is for everyone to be affected by them the same.

            1. You exposed your idiocy and then doubled down. Don’t be such a spineless twit. This is not difficult to understand. Always, always, always defend until your dying day the security of your rights. Because there may/will come a day when your rights are violated and then what are you going to say? Oh well, I guess it’s my turn in the barrel?

    1. You continue to only operate under your selected and filtered universe of facts. You do understand that this speaks more about you than about Flynn or anything else for that matter. What is even more apparent is that you remain willfully ignorant of the notion that most others see you as a biased partisan.

    2. JH:

      The Justice Department put the legal equivalent of a hot poker up Flynn’s butt.

      A 60+ year old man on a government salary who loses his house will never recover financially. Threaten his son with similar treatment and you have a compelling threat.

      Appreciate your judgement on Flynn’s character, but I wonder how you would hold up to similar coercion.

      My guess is no better than Flynn did.

    3. Typical fascist reply. We beat him until he confessed. We’re they fascist SS, fascist KGB, or dirty FBI? Ought to useful under Comrade Biden

  9. This barely scratches the surface of the irregular and abusive handling of the Flynn case. However, that alone would not justify a pardon from a president who has such a close personal and professional relationship with Flynn.

    What does his relationship with the President have to do with the merits of a pardon? So an individual wrongfully indicted, bled dry to defend himself and his family against a hostile judge and convicted, doesn’t warrant a pardon?

  10. Extremely sad that this American Patriot and his family has been subject this for his service to this nation. What has our nation come to?

      1. You know who else lied repeatedly?

        Barack Obama
        Joe Biden
        James Comey
        Andrew McCabe
        John Brennan
        James Clapper
        Susan Rice
        Samantha Power
        etc…

        1. I was relying on the guilty plea he signed, under oath, in writing, plus his in-court allocution (where someone admits to having committed a crime). I don’t care what Turley writes, or who he and the rest of you Trumpsters go after. The facts speak for themselves, and no amount of argument will change the fundamental fact that he not only lied to the FBI, he admitted it, and said to Judge Sullivan that he was pleading guilty because he was guilty.

            1. Silly twit so easily led by the nose. Yet never see what is in front. Does your nose block the obvious view?

                1. When speaking of nothing to nothing about nothing why repeat the obvious. Machines more exactly machine parts that cannot think nor reason what is in front of eyes painted leads to the world of Ad Machina.

                  The arguments true or false for the most part have nothing to do with the Subject at hand…

                  Is it morally and legally right or wrong to beat the crap physically or mentally in order to elicit a specific outcome.

                  So two truths emerge.

                  Left votes Yes no reason provided

                  The remainder vote No. Thus validates reason and humanity.

                    1. Told you. Stupid is as …..uneducated does.the bulk of your evidence dummy is not admissable

                    2. One more time. Most of what you say is inadmissable in court.strip all that away what’s left is the original charge which was not used.
                      That is all you have. Why? Fruit of the poisoned tree. Get an education.

                      The rest adds up to nothing.

      2. “HE LIED TO THE FBI. REPEATEDLY.”

        Natacha, were your knees bouncing up and down when you wrote that in all CAPS?

        Flynn did not lie to the FBI.

        See: “Yes, those same investigators who did not think that Flynn intentionally lied to them”, in JT’s article above.

        BTW, the 2 weeks after Thanksgiving are going to be very difficult for you. You should go ahead and book an appointment with your Therapist. The same one who helped you with your repetitive bad dreams about Bad Vlad.

      1. In the incipient civil war both sides will resort to tactics that are authoritarian. that always happens in war.
        The main thing in war, is winning, not following some preset conditions of ideological propriety
        Attacking the billionaires is the policy that will rally the people to the flag. the billionaires stole the election and the republic., they are the enemy. Crush the head of the snake

        -Saloth Sar

        1. It is not incipient. Except for a ”’come lately’ bnoches. The snake heads are crushed every time. The goal was to expose the DNC as the den by letting them expose themselves. Now you have to wonder who the DINOs are.started in 1909 . A long history of stupid. Very long very stupid .

          /S/ Constitutional Centrist Coalition.

          Are you next?

  11. Granted this case is quite the mess, Turley. Agreed.

    But it *is* true that Flynn was still under contract to Turkey and they were using him to extradite a Turkish national who’d run afoul of Erdowan after he’d been named to his post in the Trump administration. In other words the Turks were looking to do the same thing the Saudi’s did to Khashogi.

    And most of all, Trump should have not placed him in his government, he absolutely should’ve heeded the warnings from Obama and Yates that Flynn was dirty.

    This one rests with Trump’s incompetent judgement. It’s a foregone conclusion Trump will pardon Flynn. Maybe you can jump on Sydney Powell’s team to drive that bus away from the station, Jon?

    1. “should’ve heeded the warnings from Obama and Yates that Flynn was dirty”

      In light of the fact that Obama chose Flynn to head head up the Defense Intelligence Agency while Barry was in office, you just shoved you foot in your mouth.

      With that in mind. Who said this under oath?

      “I never saw any direct empirical evidence that the Trump campaign or someone in it was plotting/conspiring with the Russians to meddle with the election.”

      BTW, tell Pooh Bear he’s in deep sh*t.

  12. A question for Mr. Turley: If Trump issues a pardon, would it apply not just to the false statements charge but also a possible finding of contempt, based on what Judge Sullivan asked Gleason to brief, namely, perjurious statements that Judge Sullivan contends Flynn made during the plea hearings?

  13. Sullivan is every bit the political hack we thought him to be. Yeah, he has questions alright. Time to trump this leftist pawn.

  14. Turley seems intellectually incoherent here to the point of collapse — whatever side one is on. Turley has spent months documenting the issues with the Flynn case, not just the judge’s behavior but the case’s weird origins — yet he suddenly acts like he’s climbing out on a branch to endorse a possible pardon. There seems to be no sense of his prior moral dispatch (“someone like Flynn”). How about “someone like Turley”, who can’t maintain moral coherence on such an outrageous abuse of power?

    1. Turley is not an advocate, not Flynn’s lawyer. He’s clear about the abuse of power in this case. Clear about the concept of pardoning people who are close associates. And clear about his outrage over how this case has been conducted and adjudicated. Presenting hs reasoning without elevating his logic with moral pronouncements increases his power and his own moral standing.

      1. You know that when they use insults for their “arguments”, they have lost from the moment they utter 2 words.
        welcome to Civil War 20th Century style compliments of the Democrats just like in 1860

      2. How can anyone who has watched the 100% setup of Flynn — who has been personally bankrupted by police state tactics to destroy him — still fall into using the phrase “I do not come easily to the idea of pardon for someone like Flynn” — and not produce moral revulsion in the reader?

        Turley may be right on the law but he fails to express the depth of outrage proportional to the complete corruption of our legal system to destroy another human being. “Someone like Flynn” speaks for us all, now. There should be no reticence here. If they can do this to Flynn, they can do this to anyone.

        Flynn has been relentlessly persecuted by corrupt officials, and suspended from his right to a dismissal by a rogue judge — all awaiting a Biden presidency to further persecute Flynn.

        The issues here go to the core of whether we are still a nation of laws, and admit no ambiguity.

        1. “There should be no reticence here.”

          And there wasn’t, on Trump’s part. He just pardoned Flynn.

          I share your moral indignation.

          1. Ok enough BS. The answer is The Famous Fruit Of The Poisoned Tree.

            When The Dirty cops used it the first time even hinting at or about the family it was a threat therefore the tree was poisoned all else was lnadmissable.

            They tried to get more. made itworse. For the dirty cops. The judge erred a rookie or intentional mistake? Another trial judge charged.

            evidence including coerced kkeven voluntary confession all inadmissable.

            All it took in the beginning was ‘think of your family.’. Repeating showed intent on the part of the dirty cops.

            the rest of it means zero. To protect the true victim a federal pardon is the best shield. That only leaves reimbursement and trial of the judge and dirty cops..

          2. Your moral indignation shows you are not a Constitutionalist almost therefore are not worthy of moral anything except contempt. .

    2. Here’s another Democrat tut tutting Turley

      Its pathetic that Democrats, all who have embraced postmodernism and cultural relativism, can’t see how stupid they sound when they become moralistic scolds

      We understand the Left-Democrat party only follows this ethic: “will to power”

      So don’t bore us with your scold.

      I tell you what won’t be boring: when regular Americans come together against the billionaires who control the Democrat party, and cast aside their own conservative moral inhibitions, and go kinetic against them. That won’t be boring. That won’t be a scold-fest. Actions will speak louder than words. Not there yet; but give it time

      oh wait, look here. it is underway

      https://www.reuters.com/article/germany-security-crash/car-seen-crashing-into-gate-of-merkels-office-witness-idUSKBN285131

      –Saloth Sar

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