The Washington PostDemocracy Dies in Darkness

Pardoning Flynn would have looked bad. Dropping the charges is far worse.

The Trump administration’s Justice Department is undermining the rule of law.

Then-national security adviser Michael Flynn speaks at the White House on Feb. 1, 2017. (Jabin Botsford/The Washington Post)
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For months, President Trump has suggested that he might pardon retired Lt. Gen. Michael Flynn, his former national security adviser, who pleaded guilty to lying to the FBI. But now Trump won’t have to worry about it: Attorney General William P. Barr filed a motion Thursday asking the federal court overseeing Flynn’s case to dismiss the charges.

If he is successful, Barr will save Trump from the political fallout of pardoning a former close aide, while still clearing Flynn. A pardon might have seemed to be the ultimate perversion of justice — but Barr’s maneuver is actually much, much worse.

Flynn lied to the FBI in early 2017 about a conversation he had with Russian Ambassador Sergey Kislyak when Flynn was a member of the Trump transition team. Flynn’s conversation involved mollifying Russia immediately after the Obama administration expelled 35 Russian spies and imposed sanctions as punishment for its interference in the 2016 election. When interviewed by the FBI about his conversation with Kislyak, Flynn lied, despite knowing — as he undoubtedly would, as the former head of the Defense Intelligence Agency — that doing so was a crime.

The fact that he would lie to the FBI, which is charged with protecting the country’s national security, raised the concern that he might be compromised by a foreign power — a concern that Barr’s current motion to the court claims that the FBI should have ignored. In fact, Barr’s motion to the court echoes the request Trump made to the bureau’s then-director, James B. Comey, in February 2017, when he asked Comey to “see [his] way clear to letting Flynn go” — a request that landed Trump in the middle of an investigation into obstruction of justice.

Since then, Trump has never discounted the possibility that he might use his pardon power to do what Comey wouldn’t. But however ugly it might have looked, a pardon would be completely legal. The ability of the president to pardon criminals was one of the few monarchical powers that made its way into the Constitution. While the Framers debated whether to put this power into the hands of Congress, Alexander Hamilton believed it should remain at the discretion of a single person: “The benign prerogative of pardoning,” he wrote in The Federalist No. 74, “should be as little as possible fettered or embarrassed.”

Hamilton believed that pardons existed alongside, not in place of, the law, and his concept of pardons envisioned the law first taking its proper course. A pardon was appropriate “when the laws have once ascertained the guilt of the offender.” Pardons, in his view, were an act of mercy, not justice: They accept as their premise that the offender is guilty, and in the process, they legitimize the law and administration of justice even as they overturn the outcome.

Of course, Hamilton also believed that the pardon power would rest in “a single man of prudence and good sense.” This has not always been the case. Presidents have pardoned many people in the past who may not have deserved it: Gerald Ford unconditionally pardoned Richard Nixon for any crimes he had committed in office, and Bill Clinton pardoned people like Marc Rich, the ex-husband of one of his biggest donors. Because the power exists outside normal criminal law, there is no doubt that presidents have granted pardons for political, rather than merciful, ends.

But as controversial as pardons might be, at least they come with some accountability as the Framers designed them. The pardon power is enshrined in the Constitution, putting voters on notice that the character of the person they elect will no doubt influence how they wield this kingly authority. With the power clearly and unequivocally in the hands of just one person, a pardon leaves no doubt as to where the responsibility lies when a president absolves someone of a crime. A person who abuses the power may pay the price at the polls. This may be why most presidents have waited until the end of their second term or until after they have lost a reelection bid to use this authority. (Clinton’s pardon of Rich came on his last day in office.)

But Barr’s motion would blur the whole question of accountability. Trump couldn’t have done anything wrong, because he has issued no pardon; Barr’s argument, in fact, is that the FBI agents whom Flynn lied to and the prosecutors who brought the case are the ones to blame. Barr’s legal sleight of hand attempts to shift the focus from Trump to the Justice Department that he himself oversees.

We were FBI agents. We want to know why Flynn lied to the bureau.

Yet Barr’s justification — that there was no legal basis for Flynn’s interview by the FBI, which means there was no legal basis to indict him for lying to agents — is belied by the process of Flynn’s case. The investigation of Flynn was conducted by an independent special counsel and reviewed by the judicial branch. U.S. District Judge Emmet G. Sullivan accepted Flynn’s guilty plea and even went so far as to tell Flynn in open court that “arguably, you sold your country out.” Sullivan also rejected Flynn’s attempt last year to have the prosecutors held in contempt of court for allegedly coercing him into pleading guilty.

Now Barr is saying Sullivan’s orders and the whole process leading up to Flynn’s conviction and sentencing was illegitimate. At least if Trump were to pardon Flynn, the basic premise that he had, in fact, lied to the FBI and pleaded guilty to it would not be up for dispute. If Barr prevails, though, the most fundamental building blocks of counterintelligence investigations — such as ensuring that the FBI can question people about contacts with hostile foreign agents and hold them accountable if they conceal them — are no longer things we can count on. Barr wants to create a twilight zone where such things can occur with legal impunity.

Sullivan can still reject Barr’s motion, which would force Trump to pardon Flynn and accept the accountability that comes with the power, if the president really wants his man cleared. But even if Barr prevails, there may be a silver lining for those of us who believe in the rule of law: In usurping Trump’s authority, Barr could still leave Flynn in potential legal jeopardy. That’s because if the court does dismiss Flynn’s case, Flynn will not have admitted guilt, nor will he have been “convicted” in a legal sense.

Without an acceptance of guilt, Trump has no crime to pardon. And Sullivan can accept Barr’s motion “without prejudice,” which would leave the door open for a new prosecution by the Department of Justice in a future administration. And either way, the voters can still hold this administration accountable in November.

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