Jurisprudence

Trump Is Back to Hinting at Pardons for His Criminal Friends

Flynn wearing sunglasses and a suit and tie outside
Michael Flynn leaves the E. Barrett Prettyman U.S. Courthouse in D.C. on June 24. Alex Wroblewski/Getty Images

President Donald Trump has been tweeting, as one does, about the travails of his former national security adviser Michael Flynn. On Wednesday, he tweeted a piece from the Federalist claiming “explosive” new documents reveal that “the investigation and subsequent prosecution of former White House national security adviser Michael Flynn was a set-up from the beginning.” Sen. Lindsey Graham dutifully tweeted in support that “it’s pretty apparent to me that General Flynn was a victim of an out of control Department of Justice. He basically got railroaded.” On Thursday, Vice President Mike Pence joined the party. The new information they cite is just-released handwritten notes from Bill Priestap, former assistant director of the FBI Counterintelligence Division, suggesting that FBI agents interviewing Flynn in early 2017 should decide between whether to get Flynn “to admit to breaking the Logan Act” when he spoke to then–Russian Ambassador Sergey Kislyak during the presidential transition period, or try to see if he would lie in response to questions about the incident. (Flynn opted for lying.)

The unsigned, one-page, newly released note indicates that “we have a case on Flynn & Russians.” In a section titled “Afterwards,” it stated, “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?” The notes add:

I don’t see how getting someone to admit their wrongdoing is going easy on him … If we get him to admit to breaking the Logan Act, give facts to DOJ & have them decide. Or, if he initially lies, then we present him [redacted] & he admits it, document for DOJ, & let them decide how to address it.

Flynn eventually pleaded guilty to lying to federal investigators more than two years ago about his communications with Kislyak, and he agreed to cooperate with special counsel Robert Mueller’s investigators, which he did, until he sought to withdraw the plea.

This revisiting of the Flynn prosecution and conviction for lying to investigators about his contacts with Kislyak is part of Attorney General William Barr’s probe into the Justice Department’s investigation into the handling of the Flynn case. The goal is to show that former FBI Director James Comey, Assistant Director Andrew McCabe, agent Peter Strzok, and what Flynn’s new lawyer is calling “special counsel operatives” all worked together to railroad a celebrated and honest man, by threatening him with Logan Act and Foreign Agents Registration Act prosecutions. The story has been picked up widely by conservative media, with the Federalist calling the Logan Act “unconstitutional” and Fox News calling FARA “another little-known and once-rarely used law.” The gist of the “explosive” new note is unclear beyond the fact that it appears the FBI was trying to think tactically about how to question a suspect. That’s a thing the FBI does. This is, in short, a scandal in the same way the Mueller report was a scandal: The Department of Justice at one time was doing its job, which was to investigate crime, and the president happened to be closely associated with a whole slew of the criminals.

As he did during the release of Mueller’s report, Trump’s attorney general is once again running interference for his political patron at the expense of his own Department of Justice. Barr has brought in the U.S. attorney for the Eastern District of Missouri, Jeffrey Jensen, to review the entire Flynn case and determine whether the government hid exculpatory evidence from the defense, pressured Flynn to a plea deal, and questioned him without proper warnings. Barr was reportedly “a driving force” behind the decision to make these new records public. His own Justice Department has been in court defending the handling of the case as Barr seeks to undermine it.

Trump has been pushing hard on the notion that the FBI were “human scum” for pursuing the Flynn case. He’s redoubling that defense with tweets like this one from Thursday morning: “What happened to General Michael Flynn, a war hero, should never be allowed to happen to a citizen of the United States again!”

But Trump also tweeted a threat on Wednesday night at CNN for its coverage of the case: “CNN doesn’t want to speak about their persecution of General Michael Flynn & why they got the story so wrong. They, along with others, should pay a big price for what they have purposely done to this man & his family … They won’t even cover the big breaking news about this scam!” CNN covered the story here.

Trump isn’t just paving the way for a possible Flynn pardon, though. Because the criming, it is everywhere! He is also clearly laying the groundwork to pardon Roger Stone as well. His Thursday morning tweets also included this one:

Trump’s tweet came just hours before Stone filed a notice of appeal in the U.S. Court of Appeals for the D.C. Circuit of his own November conviction on seven felony counts of lying to Congress and witness tampering. Stone lost his motion for a retrial in April after his lawyers argued that the verdict against him was tainted by juror misconduct. He also failed to get the judge removed from his case. That judge, Amy Berman Jackson, denied his appeal, and he has been sentenced to 40 months in prison, although he has not yet been incarcerated. Unrelated to Stone’s pleading, the FBI unsealed search warrants into Stone’s communications this week that show he had purchased hundreds of fake Facebook accounts that he used to promote WikiLeaks’ stolen Clinton emails and later to buy ads defending himself against prosecution. Trump’s newest claims that Stone was railroaded and that jury bias tainted his trial are hardly new; Trump demanded that Barr adjust Stone’s sentence recommendation this winter, and top DOJ officials complied, with Barr insisting in February that Trump was making it impossible for him to do his job. Apparently, it is now possible for Barr to do his job again.

Donald Trump has been using his pardon power to undermine basic tenets of the rule of law for a long time now, with a special soft spot for the liars and the grifters, and if that means undermining his own Justice Department, all the better (slamming the press for failing to cover a thing it covered is just the sugary sprinkles on top). There are open questions about whether a president can be held criminally responsible for pardons used to obstruct justice. It is certainly the case that once someone has accepted a pardon, he loses his Fifth Amendment privilege against self-incrimination, which means that he may be hauled before Congress to testify about any illegal activities. But impeachment was intended to be the principal check against abuse of the pardon power. We all saw in January and February how that went.

Nobody can be surprised to see Donald Trump getting ready to pardon some of his extra-special liars. That’s just standard birds-of-a-feather stuff. But watching Barr’s willingness to hollow out his own Justice Department in order to free a few of the president’s favorite bottom feeders remains a thing of wonder. All that talk of Barr as a “lawyer’s lawyer” when he took over from Jeff Sessions was so much wishful thinking. He’s actually just a criminal’s lawyer, and he holds all the keys.