The Supreme Court says that 'acceptance' of a pardon is tantamount to a 'confession.'
Donald Trump's reported plan to pardon his former national security adviser Michael Flynn could cause more problems than his innocent pardoning of this year's Thanksgiving turkey.
Axios reported Tuesday that Trump had told his aides he was planning to pardon Flynn, who previously pleaded guilty to lying to the FBI in December 2017, before leaving office in January. Doing so, however, would contradict both men's repeated claims since then that Flynn was innocent and supposedly framed by prosecutors.
According to a 1915 Supreme Court case, accepting a pardon is a tacit admission of guilt. The Supreme Court held in Burdick v. United States that a pardon "carries an imputation of guilt and acceptance of a confession of it."
In other words, if Flynn did nothing illegal, there would be nothing to pardon.
Flynn, a retired general, was a top Trump adviser and surrogate during the 2016 campaign. He frequently questioned Hillary Clinton's ethics, leading chants of "Lock her up!" during the Republican National Convention.
Trump eventually appointed Flynn to serve as his first national security adviser, though he was fired in February 2017 after lying to Mike Pence and federal investigators about his contacts with Russia during the transition period.
In December that year, Flynn formally pleaded guilty to lying to the FBI. "I recognize that the actions I acknowledged in court today were wrong, and, through my faith in God, I am working to set things right," he admitted at the time. "My guilty plea and agreement to cooperate with the Special Counsel's Office reflect a decision I made in the best interests of my family and of our country. I accept full responsibility for my actions."
Despite firing and publicly shaming Flynn over the matter — at one point, Trump tweeted that he had fired Flynn "because he lied to the Vice President and the FBI" — Trump later changed his mind and decided that his former aide was innocent.
"What happened to General Michael Flynn, a war hero, should never be allowed to happen to a citizen of the United States again!" Trump tweeted in April 2020. He repeatedly attacked prosecutors, and accused them of framing and entrapping an innocent man.
Flynn too changed his mind, asking the court in January this year to let him withdraw his guilty plea. When the judge refused to let him do so, Trump's Justice Department overruled its own career prosecutors and attempted to drop the prosecution entirely.
Judge Emmett Sullivan refused to dismiss the case. Trump attacked Sullivan as a result, retweeting a supporter's message in September which read, "Good morning to everyone except Judge Sullivan and the corrupt FBI agents that tried to prosecute General Flynn under fraudulent and manufactured pretenses."
The White House did not immediately respond to a request for comment for this story.
This would not be the first time Trump used his pardon and commutation powers to let his cronies off the hook for crimes.
In 2017, he pardoned former Maricopa County Sheriff Joe Arpaio, a prominent supporter who was convicted of contempt of court after refusing to stop racially profiling people.
In 2018, he pardoned conservative activist Dinesh D'Souza, who had admitted previously to felony campaign finance violations.
And just this year, Trump pardoned his lawyer Rudy Giuliani's close friend and former New York City police commissioner Bernard Kerik, who pleaded guilty to tax fraud in 2010; granted clemency to former "Celebrity Apprentice" contestant and disgraced ex-Illinois governor Rod Blagojevich, who was found guilty in 2011 on 17 counts, including for wire fraud, soliciting bribes, and attempted extortion; and commuted the sentence of his former lobbyist and campaign adviser Roger Stone, who was convicted of witness tampering and obstruction of justice and sentenced to more than three years in prison back in February.
House Intelligence chair Adam Schiff said Wednesday that if reports about Trump's intentions were true, a Flynn pardon would reflect "ill on our democracy, on the United States."
"Imagine what people around the world think when we have a president that’s acting like an organized crime figure," Schiff (D-CA) told CNN. "But this is who Donald Trump is. It's who he was on the way into the presidency. It will be exactly who he is on his last days of the presidency."
Published with permission of The American Independent Foundation.