Waiting on the Flynn Pardon Paperwork: What Happened with the Roger Stone Commutation

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A lot of lawyers are arguing about what Judge Emmet Sullivan might do now that Donald Trump has [tweeted out a claim that he had] pardoned Mike Flynn.

It’s useful to see how something similar happened with Roger Stone. The Mueller Report made an extended case that both of them (along with Paul Manafort) had been encouraged to lie with a pardon dangle. In Stone’s case, as with Flynn, Bill Barr took unprecedented steps to try to overturn the prosecution. Then, in both cases, Trump intervened in an attempt to protect the people who had protected him.

So Stone’s docket should provide a hint of what might happen with Flynn’s pardon.

Stone’s commutation didn’t show up on DOJ’s list of commutations for several days (the commutation was issued the Friday before the Tuesday Stone would have reported). Three days later, however, DOJ posted Stone just like they had other grantees.

But DOJ didn’t inform Judge Amy Berman Jackson of their own accord. She had to go to DOJ, on the Probation Office’s behalf, to ask WTF. She ordered the parties to provide proof of the commutation, including details on how much of Stone’s punishment it covered.

In response, Stone’s lawyers posted the actual grant.

When law professors who had no standing tried to intervene — based on some of the same theories that people are floating in this case — ABJ rightly denied their motion to file as amici.

As noted, I suspect something similar will happen next week where the terms of Flynn’s pardon will be submitted to his docket. All that said, until something does land in the docket — and for some of the pending motions, even afterwards — Sullivan is still entitled to proceed as he has been, writing an order for the motion to dismiss. Even after that, there are several topics — what to do about Flynn’s perjury before him and before the grand jury, what to do about Flynn’s motion to withdraw his plea (which may pertain to DOJ’s ability to charge Flynn or his son on FARA charges), and what to do about DOJ altering documents submitted to Sullivan — that Sullivan might rightly weigh in on.

DOJ may have an incentive to shorten the amount of time in which Sullivan can do that.

But there is absolutely no reason to believe that Sullivan would challenge the pardon, nor is there reason to believe he’d respond any differently if someone else tried to.

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91 replies
  1. Rugger9 says:

    The devil is firmly in the details here, for many reasons. I would agree that Sullivan cannot reject the pardon unless he finds it was for blatantly unlawful purposes. Based on as much as we have seen so far, I think Sullivan has to let Flynn go, but not without sanctioning all of the DOJ lawyers who supervised and filed this travesty of a case change. Powell will get hit as well.

    However, the actual pardon details are what will drive the actions Sullivan will take vis a vis Flynn, and FWIW if Mike Jr is not included Biden’s DOJ might have something to say there as well.

    • Wajim says:

      Sanctions, yes. What about that? Do we think Rudy, Jenna, Sidney, et al. will ever face the bar with regard to their (imho) clearly unethical conduct in court? Say, by next Summer? Just wondering

  2. Norskeflamthrower says:

    Oh shit!! Off topic but Trump just got flown to Camp David from his golf course in Virginia. He never goes to Camp David and he seems not to want to be in DC when the shit starts flyin’ in Iran.

      • readerOfTeaLeaves says:

        1. Please don’t tease.
        2. The Trump family has never shown a scintilla of the self-awareness, courage, nor integrity that would be a precursor to doing an intervention.

        • readerOfTeaLeaves says:

          8^)))
          Also, I will try to lighten up.

          I will admit to relishing the delicious irony that the sight of Nancy P — at 80 still normal weight, moving well, gracious and well-attired — advising the much younger Trumps to intervene and save the world from their deluded father’s rampages is a wonder to behold.

    • Chris.EL says:

      Time-wise how does this comport with the killing of the nuclear scientist/? Don’t know the man’s name off top o’my head, but maybe they went to Camp David to watch the killing (special ops)? That’s morbid and heartless!

  3. earlofhuntingdon says:

    Sullivan would seem entitled to a certified copy of an original from the White House or DoJ. A copy provided by the pardonee himself should be insufficient.

  4. bmaz says:

    And there it is: “Ex-Intel Officials Caution Biden Against Giving Trump Access To Classified Briefings After Leaving White House”, reported by Dilanian just now on MSNBC.

    Really this is truly a no brainer, no way should he receive any of that. And I would be shocked if ever does get them.

  5. Chris.EL says:

    Per emptywheel/Marcy:

    “Lots of people are debating about what will happen w/Flynn’s pardon. It’ll probably work similar to the way Stone’s commutation did.

    If so, that means we’ll see paperwork for the pardon when Sullivan asks for it.”
    ~~~~~~~~
    my conjecture: above all, Trump wants to protect himself, especially from those associates who know where the “bodies are buried.” Lt. Gen. Flynn is obviously one of those people. Since Flynn was seated next to Putin at that dinner (way back when), and Flynn likes to be called “General Misha,” I suspect Flynn knows the Russian language. So Flynn is valuable to Trump. Nevertheless, Trump wants insurance to keep Flynn quiet. Suspect Trump will dangle an incomplete, badly composed pardon as long as he can.

    Still envision Trump dancing off with a sorry! OMGosh! I’m outta time! Gotta run! [Or start a war to throw a wrench into Biden’s inauguration day.]

      • Chris.EL says:

        tried to preface this with conjecture label, not an expert; don’t read facebook, don’t froth.

        I’ve read how Trump over and over states, “… Flynn’s a good guy, let this go…”

        Trump doing everything he can to keep Flynn from talking, etc.

        Went online to look for corroboration for my gut feeling; found this, seems like a well-informed expert?

        Snyder penned a five part tweet that lays it out…

        “Timothy Snyder
        @TimothyDSnyder
        Levin Professor of History at Yale. Author of “Our Malady,” “The Road to Unfreedom,” “On Tyranny,” “Black Earth,” “Bloodlands,” and “Reconstruction of Nations”
        timothysnyder.org
        Joined March 2015
        31 Following
        134.5K Followers”

  6. BobCon says:

    Can anyone answer a question about the jurisdiction of presidential pardons?

    Is there any risk that Trump will be able to reverse Matt Patricia’s firing? If so, we may need a constitutional amendment as soon as possible.

  9. Chris.EL says:

    my speculative query is inspired (in a way) by Marcy’s tweet:

    “I mean, I 100% agree with those who say Sullivan has no discretion over whether to grant the pardon. But that’s just a bad look.”
    ~~~~~~~~
    So… Trump (the ______________) grants Lt. General Flynn a pardon but said pardon is written ambiguously, inarticulately, imprecisely.

    Judge Sullivan says, well now, I’m not sure what you mean by this. I have questions. Why don’t you come on down and we’ll talk about it? I can’t proceed until you do…

    In other words, refuse to proceed, bucking protocol, a la Trump.

    Let’s see how Trump likes that — referencing Trump’s refusals to honor subpoenas…

    Just some thoughts…

    • bmaz says:

      I believe Flynn must affirmatively assert the pardon before anything happens. Of course, Sullivan could speed that up by ruling on the motion and denying it. I wish he would go ahead and do just that.

  10. morganism says:

    I was wondering why the Prez started doing weird stuff at the Archivists office 2-3 years ago.
    Thought it was to try and hide records from the Admin, but looks like it was because the Electors are served the results from the states Sec of State or certified elect results from the Archivist.
    Wonder who (Rove) came up with that angle to scam.

  11. Chris.EL says:

    “Andrew Solender — writing for Forbes
    @AndrewSolender

    2020 isn’t the first time; Trump has pushed some form of voter fraud conspiracy in at least 8 elections since 2012.

    2012 Pres.
    2016 Pres.
    2017 Alabama Sen.
    2018 Arizona/Florida Sen.
    2018 Georgia Gov.
    2020 NY-12 Dem primary
    2020 Pres.”
    ~~~~~~~~~~
    dear “emptywheel world”:

    what the f*** is wrong with this guy (Trump) or (__________ speak your favorite euphemistic expletive).

  12. AndTheSlithyToves says:

    Somewhat off-topic, but thought-provoking: In the endless rabbit hole of the WWW, I fell onto this piece the other day. https://apnews.com/article/194a2e32a4f76060fad7c567740d573c
    It’s about the two utility execs from South Carolina who were sued by the SEC for their gross mishandling and misrepresentation (to shareholders and the public) of the expansion of a public power utility (nuclear). https://www.sec.gov/litigation/complaints/2020/scana-complaint-022720.pdf
    They’ve apparently settled and are going to prison. I’m wondering if this was one of the situations that Trump and Lindsey G discussed on the golf course in early 2017 that so radically altered LG’s attitude toward Trump. There’s a similar situation involving public utilities–in addition to Deripaska’s aluminum plant–going on in Alabama. Only conjecture, again, but I think Trump knew about Sessions involvement and thought he could blackmail him and turn him into his pet AG.

    • readerOfTeaLeaves says:

      Further off-topic. WTF??
      But this first linked item is from last winter…?

      “Two former executives at a South Carolina utility lied repeatedly to regulators and investors about the progress of construction of two nuclear reactors taking more than a billion dollars out of the pockets of investors and ratepayers, federal securities officials said….
      More than $9 billion was spent on the reactors, which never generated a watt of power before they were abandoned in the summer of 2017.       State-owned utility Santee Cooper had a minority stake in the project and ended up $4 billion in debt…SCANA paid Marsh $5 million and Byrne more than $2 million in 2017, the year the project collapsed, according to public filings…

      Jesus, you’d think Dick Cheney was the project manager, given the mismanagement detailed in that AP article.

      Did these power utility managers really believe that no one was going to wonder how a b-b-billion dollars went missing…? That $9 b-b-billion could be spent without producing a single watt of power, and they could just weasel along with zero accountability…?

      And for that matter, how does sending two men to jail make amends for $9,000,000,000 of missing money to banks, etc? Sending two men to jail seems negligible for a problem of this scale. Two people can’t pull off a scam like this.

      Horrendous overruns and delays on nuke plants happened in my state in the late 70s-80s. Two plants (Satsop) were shut down decades ago, and to this day part of my local power utility payment goes to pay down bonds taken out in the early 1980s (!).

      This is not good news for Lindsay Graham; $9,000,000,000 missing in one single utility in your state. If Trump knows something, how would he know it, and who would have been his source? (I’ve long assumed it was kompromat about boys, but billions of dollars of missing money could also keep Lindsay on a leash, I suppose.)

      And something is also going on in Alabama…?!
      Sinister.

        • readerOfTeaLeaves says:

          That’s a very good question.
          Whoever can answer it would probably also want to know how many ‘dark money’ anonymous LLCs and PACs donated to Graham, in case some of their contributions went through those vehicles.

          But billions of dollars not producing a single watt of power…?!
          This is simply stupifying.

  13. Rugger9 says:

    OT but important: it seems Jared is trying once again to restart his “peace process” which was basically a blank check to Bibi to annex the West Bank in exchange for nothing for the Palestinian Authority (such as it is). That’s the official story, but I wonder if there is something else going on.

    Let’s remember that the top Iranian scientist has been assassinated, as well as General Suleiman before him which tells me that DJT’s been listening to Bolton and Pompeo again while fomenting war with Iran. Pompeo thinks he’s going to get raptured (wrong direction, Mike) and Bolton’s bloodthirsty with other people’s kids. It’s been Netanyahu’s policy for a long time to fight with the Iranians as long as American troops are in the line of fire, and MBS wants to get rid of Iran as a competitor in the Gulf. Russia and the PRC are only too happy to have the US bogged down in the Gulf while they expand influence elsewhere.

    Iran’s too cohesive and has too long a coast along the Straits of Hormuz to make a conflict a cakewalk and especially preventing asymmetric warfare on tankers and other ships transiting the Straits. Troops we keep there will not be in the South China Sea to stop the PRC nor in Europe to stop Putin’s empire building.

    However, DJT will not care to see how much of a mess this will create for America, only that it will limit Biden’s opportunities to fix what has been broken by DJT and the rest of the GOP.

    Back on topic, it appears Carter Page filed a multimillion dollar lawsuit for the “unlawful spying” and DJT naturally waded in with Maria Bartiromo to say he wants a special prosecutor to go after the DOJ persons who investigated Page (etc.) and repeated that he’s proud to have pardoned Flynn. Yet, no one has seen this pardon anywhere in actual print, perhaps they need to translate the Sharpie scribbles.

    • readerOfTeaLeaves says:

      Unclear how this all links to Flynn’s commutation, but surely it does. Meanwhile, Bibi and MbS appear to be getting things done before 20 Jan, when Biden has signaled he will rethink the links between US and Saudi.
      https://www.nytimes.com/2020/11/20/world/middleeast/saudi-arabia-biden-trump.html

      IMVHO, Trump is more reactive to any emotion at any given moment; he is extremely unstable and getting even worse. Someone else is cooking up these schemes, and Jared would fit the role: after all, MbS claimed that Jared was ‘in his pocket’, so it’s not outlandish to suppose there are links.

      Am I the only one who thinks that if MbS supposes that he can somehow make Iran ‘disappear’ he’s delusional? No matter how far back in (written, and pre-literate) history you go, the Persians (Iranians) have held that region for millennia. The Iranians were building cities while MbS’s ancestors were nomadic tribesmen trading horses. That’s not to make any sort of prediction, but primarily to point out that the Persians have a very, very long history. And their history is extremely different from the tribes of Saudi Arabia.

      Presumably, MbS’s stranglehold relies on oil and surveillance. The oil is losing value as the world becomes fed up with the downstream effects of oil use. The surveillance is another story.

      It has always seemed that Flynn did not believe that he’d be caught doing whatever-he-was-doing, b/c he must have assumed (former head of DIA) that he could either evade or control surveillance.

      Once again, much depends upon the judgment of Judge Sullivan. And with ABJ. Neither the Saudi’s, nor the Israeli’s, seem to fully suss this factor.

      • Chris.EL says:

        Tea Leaves’ thoughts are very well put! I mulled similar theories: someone with a more strategic thought process (than Trump) was moving these events along. It fit that Jared would get the gang together to watch the special ops unfold. Couldn’t do it at White House, that would be unseemly; Camp David probably has military observation capabilities.

        • earlofhuntingdon says:

          Always good to have a back-up plan – and a Gulfstream without a tail number or transponder. How serious a plan might be telegraphed by what percentage of his assets move offshore.

  14. Chris.EL says:

    This quote is from an article written by Sam Berger, January 9, 2019: “When the Pardon Furthers the Conspiracy: Limits to the Pardon Power”
    justsecurity.org/62174/pardon-furthers-conspiracy-limits-pardon-power/

    …”To allow pardons for ongoing or future crimes would mean the president could suspend any and all laws for any person or group of persons, making a mockery of our legal system.

    This limitation of the pardon power has been reflected in presidential practice. While people have been pardoned for conduct for which they have not been charged, as in the case of Richard Nixon, no president has ever attempted to pardon an individual or individuals for actions that are ongoing or yet to occur.

    Note, however, that in his [Trump’s] pardon of Joe Arpaio for criminal contempt stemming from his violation of people’s constitutional rights, Trump included ambiguous language that could be read as an illegal attempt to pardon future conduct. Trump pardoned Arpaio for his criminal contempt charge and “for any other offenses…that might arise, or be charged, in connection with Melendres v. Arpaio.” (Emphasis added).”…
    ~~~~~~~~
    veeery interesting!

    • Rugger9 says:

      I’m not so sure about calling it “future” conduct, however, as we have learned from EW’s Rashomon series and other posts, crimes may take a while to become apparent which would be the case for a charge that “arises”.

      As far as the pardon itself, I would suspect from the Bartiromo interview that DJT thinks his “full pardon” is done and covers everything (because he said so). That would mean Flynn is now free to answer Congressional questions about all of these topics without needing to take the Fifth and so could put DJT into a very hot seat indeed. If Flynn wanted to fib or obstruct by having a bad memory, then a new crime is created. If Flynn blows off the House subpoena then the Biden DOJ will enforce the subpoena. As has been noted by our legal team here, the pardon has to be filed on the docket to get judicial notice, and no one has seen what it actually does say.

      This might be why AG Barr (who hasn’t been seen out and about in a while IIRC) went to the mandamus gambit. Powell filed a brief to the court where she refused to identify an expert witness (I guess to keep it away from her opposition) and I don’t think that is allowed by a plaintiff, but IANAL. One does hear about “surprise witnesses” in courtroom dramas, so boulders of salt might need to be taken.

      • Rugger9 says:

        I liked Dale Ho’s pointing out from the government’s evidence the 1828 dictionary that clearly included immigrants as “persons” when being counted for the census. In any rational court this would have been game, set, and match but with the current Roberts court we have to hope that the furrowing brows over “ripeness” will stop the change.

        That Alito is being a jackass is not really news, but I think it’s a sign of his desperation that he was so open about it this time. Not only running over Sotomayor, but also referring to the NY Solicitor General as “Miss”, not “General” in his most condescending manner.

      • earlofhuntingdon says:

        The disdain Alito is demonstrating toward Roberts – and by extension, the liberal wing – is more than performance art, it’s personal. The Hard Right Five are trying to bully Roberts onto their side of the aisle. They seem committed to tag teaming him until he surrenders (not just in this case). They also seem to be engaged in straight up advocacy, mocking Roberts’ notional role of only calling balls and strikes.

        It’s a ruthless tug of war for the reactionaries, who believe they have a once-a-century opportunity to remake the court in their image – and to hell with Americans. They should be grateful the reactionaries are “saving” them from themselves. Proselytizing at the point of an opinion.

        The reactionaries make a perfect case for reforming the court. But that can’t happen until after 2022, when the Dems should have a stronger majority. Even if they win both GA seats, there are too many blue dogs to vote for reform.

        • readerOfTeaLeaves says:

          Everything that you say is true.

          I would simply keep pounding my drum about the sense of uncertainty – a pandemic, a cadre of senators and congress(men) in their late 70s and 80s, a group assumed to be at high risk. And then McConnell looks to be almost shuffling, which is never a good sign no matter one’s age.

          The SCOTUS is going to be so reactionary that I predict even the Mountain West GOPers are going to be fed up by 2022 or 2024. They may rue the day they ever put the insolent Amy Coney Barrett on the highest court in the land, all the better to attempt rolling back the Laws of Nature. It won’t surprise me if she renders a decision that pi has to be limited to 5 decimal places.

          And if she ever goes near Daubert, then I hope every pharmaceutical company, chemical company, universities (who control patent rights from basic science), software companies, and anyone who relies on science (or math) comes in full force at both SCOTUS and the U.S. Senate.

          Here’s hoping that Durbin realizes he’s plenty busy as Dem whip, and stands aside to watch Sen Whitehouse gather a full head of steam and dig into the money behind these disturbing SCOTUS nominations. (A task that I’m sure Durbin completely supports, given his previous statements about the Court.)

  16. harpie says:

    Sunday Night Zoom Court in Georgia:

    Judge freezes voting machines in three Georgia counties
    The suit is one of two cases filed in federal courts last week by Sidney Powell, an outspoken Texas attorney.
    https://www.politico.com/news/2020/11/30/judge-freezes-voting-machines-georgia-counties-441342
    JOSH GERSTEIN 11/30/2020 08:20 AM

    A judge assigned to a Republican-led lawsuit alleging widespread fraud in the presidential election in Georgia issued an order late Sunday night blocking plans to wipe or reset voting machines used in three counties in the state.

    U.S. District Judge Timothy Batten Sr. revealed in his four-page directive that he held a hearing via Zoom Sunday evening on the suit — one of two cases filed in federal courts last week by Sidney Powell, an outspoken Texas attorney who joined President Donald Trump’s legal team earlier this month only to be dismissed from it a few days later. […]

    • P J Evans says:

      They sued the state, but the court, AIUI, told them that the voting machines are in the counties’ custody. (I understand that the machines themselves will tell them nothing. The data is on removable media, and isn’t stored in the machines at all.)

    • Rugger9 says:

      How can Powell pursue this if she’s not representing the campaign or DJT personally? That alone should spike this, I would think on standing grounds.

    • Pankaj Gupta says:

      I am not a lawyer, but isn’t some of the language there a bit nebulous when it comes to the Mueller investigation.

    • skua says:

      Is it fitting and proper that a pardon for criminal acts is framed as a present [gift]?

      Approaching the legal and judicial institutions involved in such a way is to belittle them, the office of POTUS, and, in the eyes of the world, the USA.

      • P J Evans says:

        It’s a grant, so that’s how the legalese runs. (Deeds used to start with “Know all men by these presents”, also. Think of the verb “present”, and this is the noun that goes with it.)

        (Quote from a deed ca 1777: and by these presents do grant bargain sell allien enfeoff release quit claim and confirm unto the said Evan Evans his heirs and assigns )

        • earlofhuntingdon says:

          Good example of the long-in-favor but outdated kitchen sink, belt-and-suspenders style of drafting.

        • P J Evans says:

          It’s long, 2200 words, detailing the previous owners and the limits (metes and bounds, of course). About 400 acres, of which he bought 200. (His brother owned the rest.) I know roughly where it was.

    • earlofhuntingdon says:

      I’m sure EW will have a post or two up on that shortly. It’s pretty damn broad. It’s not everything Flynn might have done, but it seems to cover what he might have done relating to Trump – the pardon’s real beneficiary.

      It specifically includes lying to federal “investigators,” in connection with the offenses he was charged with and any facts related to them, including lying to the grand jury. It goes on to include any offenses arising out of the proceedings before Judge Sullivan (e.g., lying under oath during them). Here’s the kicker: it includes anything within the scope, as amended, of Bob Mueller’s investigation (whether or not pursued). (I’m curious whether that covers civil or criminal contempt claims.)

      It applies to any covered federal crime that occurred on or before November 25, 2020 – the date it was issued – but has no start date. That’s presumably intended to capture, for example, the Fall 2016 transition and anything preceding it.

      The scope makes it abundantly clear this was not a pardon for an innocent or wrongly charged man. I think its scope also makes clear that its purpose is to protect the issuer of the pardon.

      • timbo says:

        In an initial quick look at it, it certainly shows a total lack of regard for the Federal Courts and counter intelligence investigators, a total lack of regard or consideration for the laws the Congress has passed, and, frankly, IMO, a basic disregard for the integrity of the country and military discipline in general.

      • MattyG says:

        In the event DT is one day charged with crimes stemming from the Mueller investigation could this pardon be presented as evidence of bribery?

      • earlofhuntingdon says:

        In the cited Politico article, the DOJ claims that Flynn has accepted the pardon. But since it is formally an adverse party, that claim should come from Flynn or his counsel.

        The DOJ also contends that the pardon moots any issue of criminal contempt in the “proceeding” before Judge Sullivan.

        It’s possible that the broad scope of this pardon – touted as the broadest since Ford’s pardon of Nixon – might be challenged, but not by Judge Sullivan. (Nixon’s pardon has not be challenged in court.) I hope Sullivan issues an opinion, though, rather than simply signing off on a motion to dismiss.

      • Rugger9 says:

        I would think that Flynn can now be compelled to testify under oath (and present evidence, I would think) to Congress about anything contained in this pardon’s scope. That also includes any discussions around Turkey, Russia, DJT’s interests and especially the Barr-driven intervention on the mandamus. All of these topics have nasty consequences for the WH.

        If Flynn lies, another crime is committed.

        TPM’s commentary and links to the paperwork filed:

        https://talkingpointsmemo.com/news/doj-makes-clear-that-trumps-pardon-of-flynn-is-breathtakingly-sweeping

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