Donald Trump is out of the White House in less than two months. But he has scores to settle before he vacates his chair to Joe Biden, the man who defeated him at the ballot box earlier this month. First, it was the firing of multiple officials at the Pentagon who were deemed by Trump to be insufficiently loyal to his agenda. Next came the replacement of those officials with ultra-loyalists who would implement his orders without question or reservation.
And now, Trump is levying his exclusive right to pardon people of federal crimes – a power unique to the presidency. On November 25, when most in Washington, DC were chatting about who may serve in Joe Biden’s cabinet, Trump announced that he had pardoned Michael Flynn, his short-lived national security adviser who pleaded guilty to lying to federal agents about his calls with the former Russian ambassador.
Flynn’s case was in many ways the first scandal of the Trump era. Installed as one of Trump’s most powerful national security officials, Flynn was quickly ensnared by an FBI counterintelligence probe into suspected connections between the Russian government and the Trump 2016 campaign. Flynn’s conversations with the Russian ambassador about sanctions was a subject of inquiry in that investigation. When FBI officials interviewed Flynn about those conversations, Flynn denied ever speaking about sanctions at all. The result: Flynn lost his job and would later admit to misleading federal agents.
For the FBI, it was an open-and-shut case. Yet for President Trump, Flynn’s prosecution was actually a persecution committed by a deep-state cabal that couldn’t stand the fact that he won the presidential election. When Flynn began cooperating with special counsel Robert Mueller’s wider investigation in exchange for a more lenient sentence, Trump’s anger rose to a boiling point. The feeling stewed within Trump throughout his presidency, persisting even after he weathered Mueller’s inquiry – a section of which centred on whether Trump himself obstructed justice by trying to convince his former FBI Director, James Comey, to back off the Flynn investigation.
So, it came as no surprise that Trump’s grievances were expressed in the White House statement about the pardon.
“‘The prosecution of General Flynn is yet another reminder of something that has long been clear: After the 2016 election, individuals within the outgoing administration refused to accept the choice the American people had made at the ballot box and worked to undermine the peaceful transition of power.’
Democrats were immediately disgusted. Adam Schiff, the congressman from California who led the Democratic Party’s prosecution against Trump in the impeachment trial, said Trump’s pardon was yet one more corrupt act before the defeated incumbent left the White House. ‘Crooked to the end,’ he tweeted. Chuck Schumer, the top Democrat in the Senate, was furious: ‘This is just one example of why the American people voted to remove him [Trump] from office.’ Andrew Weissmann, one of the leading prosecutors on Mueller’s investigative team, wrote that ‘Trump’s abuse of the pardon power undermines the crown jewel of our democracy: the rule of law.’
While the Flynn pardon is not an illegal act – the US Constitution invests in the President the power to pardon and commute federal offenses – it does smell fishy. But it’s not like Trump’s predecessors haven’t used the power of the pardon in fishy ways before. President George H.W. Bush issued a pardon on Christmas Eve, 1992, on behalf of six defendants – including a former national security adviser and defence secretary – who were either charged or convicted of providing false statements to Congress concerning the Iran-Contra scandal. One of those defendants, Defence Secretary Caspar Weinberger, was scheduled to go on trial two weeks later.
In the closing hours of his presidency, Bill Clinton pardoned Marc Rich, a financier who was indicted on multiple counts of fraud. Given the fact that Rich’s wife was a Democratic Party fundraiser, many people at the time were aghast at Clinton’s decision and viewed it as a move driven by corrupt intent. And let’s not forget that Clinton also pardoned his brother, Roger, who was convicted of a cocaine charge.
Trump’s last-minute pardoning of Michael Flynn will rub a lot of people the wrong way. But let’s not fool ourselves: this is not some extreme break in precedent. There have been dicey pardons in the past – and you can bet there will be dicey pardons in the future, too.