This is the top story from our daily newsletter published on November 26, 2020. To have this and more delivered directly to your inbox scroll down and enter your email or click here to sign up. Photo: Retired U.S. Army lieutenant general Michael Flynn at a campaign rally for Donald Trump at the Phoenix Convention Center in Phoenix, Arizona. Credit: Gage Skidmore.
Top story from the Wall Street Journal news team: “President Trump said he has pardoned former national security adviser Michael Flynn. Mr. Flynn pleaded guilty in 2017 to lying to the FBI about his contacts with a Russian official in the weeks before Mr. Trump’s inauguration, becoming one of the most senior ex-Trump officials to cooperate in special counsel Robert Mueller’s inquiry into Russian interference in the 2016 election and any links it might have to the Trump campaign. He later sought to withdraw his plea and argued that he had been set up by the FBI. The Justice Department agreed and moved to drop the case earlier this year, but the proceedings have been under review in federal court.” Here’s what both sides are saying about the pardon:
On the Right: In an opinion piece for Fox News, Jonathan Turley takes issue with the way the judge handled the Flynn case. He writes, “The strongest case for a pardon for Flynn was not made by his lawyers.” Instead, Turley, “who has long opposed Trump’s pardons of associates like Roger Stone and former Maricopa County Arizona Sheriff Joe Arpaio,” says the strongest case was made by Flynn’s judge, the Honorable Emmet Sullivan. Turley believes “Sullivan’s continued controversial actions in the case could be cited as a credible, if not a compelling basis, for a pardon of Flynn.” After detailing why he has “long [been a] critic of the Flynn prosecution for a variety of reasons,” Turley says in the end “Sullivan’s handling of the case was unsettling and irregular.” Turley says, “Sullivan blew up the proceedings with bizarre diatribes, used the flag in court as a prop, [and] even suggested Flynn should have been charged with treason.” Turley says, “Sullivan’s conduct led a D.C. panel to order him to dismiss the case,” and that Sullivan continuously refused to give a final ruling. Turley says this “left the troubling appearance that Sullivan was prosecutor shopping, delaying the case until after an expected Biden electoral victory. With a Biden Justice Department, Sullivan still might be able to sentence Flynn.” Ultimately, Turley says, “We have a case where the prosecutors have declared that there is insufficient evidence for a charge but the judge refuses to let the defendant out of his courtroom after years of delay. That is why the only basis for a pardon in this case that is stronger than the conduct of the defendant is the conduct of the judge.” Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a practicing criminal defense attorney.
On the Left: In an opinion piece for The Atlantic, Mark Osler takes issue with what he sees as an assault or cheapening of the clemency power. Osler titles his piece, “The Flynn Pardon Is a Despicable Use of an Awesome Power.” In it, Osler says Trump’s pardon is “infuriating—and not merely because of the gross favoritism on display.” Rather it’s because “What Trump has done once again is corrupt something that ought to be beyond corruption: the mercy that the most powerful person in the world can bestow upon those who are in chains.” Osler, a professor of law at the University of St. Thomas, MN, says he has seen “the beauty of this power,” when his “law-school clinic’s clients had been granted commutations that would free them from life sentences on cocaine offenses after each had served 25 years or more in prison.” He says, even though the “Trump administration has very rarely created moments of joy shared across the country’s political divide,” it did offer one “on June 6, 2018, [when] Trump granted a commutation to Alice Marie Johnson, a grandmother serving a life sentence on a narcotics conviction.” Osler says, “it was a brief, surprising, uplifting moment” and “The pardon clause is what enabled that moment and others like it.” Osler says, “In a criminal-justice system characterized by its inhumanity, the pardon power is capable of only one thing, something more spiritual than legal: mercy.” Therefore with the Flynn pardon, Osler believes, “Trump has upended this by taking the acceptance of responsibility and the reconciliation out of it.” Osler says, “too often, clemency in his hands has just been a way to mark and reward terrible behavior he approves of, as with Sheriff Joe Arpaio’s biased policing.” In conclusion, Osler says the right way to move forward isn’t by restricting the pardon power. Rather he says, “The reform we need is a new, better process to evaluate petitions, so that more people, not fewer, can know this blessing.”
Flag This: According to the Pew Research Center, “So far, Trump has granted clemency less frequently than any president in modern history.” According to data from the U.S. Department of Justice, “Trump’s sparse use of pardons, commutations and other forms of official leniency stands in sharp contrast to his predecessor, Barack Obama, who used the clemency power more frequently than any chief executive since Harry Truman.” John Gramlich and Kristen Bialik write: “As of Nov. 23, Trump had granted clemency 44 times, including 28 pardons and 16 commutations. That’s the lowest total of any president since at least William McKinley, who served at the turn of the 20th century. Obama, by comparison, granted clemency 1,927 times during his eight-year tenure, including 212 pardons and 1,715 commutations. The only modern president who granted clemency almost as infrequently as Trump is George H.W. Bush, who granted 77 pardons and commutations in his single term.”