U.S. Department of Homeland Security (DHS) / Flickr trump waving...
U.S. Department of Homeland Security (DHS) / Flickr

Here’s an idea—after admitting that you knew your national security adviser had lied to the FBI and subsequently begging your FBI director to quash his investigation into it only to fire him for not doing so, you float the idea of pardoning the national security adviser who is now widely known to be cooperating with that investigation.

It’s so obstruction-y, only an idiot would do it, right?

Asked whether he planned to pardon former national security adviser Michael Flynn, Trump said “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens.”

Welcome to your Friday installment of Donald Trump’s stupidity. So yeah, this raises all kinds of concerns about presidential power, etc. But the fact of the matter is, most of the damage Flynn can do to Trump is probably already done, otherwise we probably still wouldn’t even know about Flynn’s plea agreement with federal authorities to begin with. Former federal prosecutor Renato Mariotti laid it out pretty nicely in a tweet thread.

“If Flynn is pardoned now,” Mariotti wrote, “the upside for Trump is much lower than it would have been earlier because Flynn has already told Mueller everything he knows. Additionally, if Flynn accepted a pardon, he couldn’t take the Fifth if called to testify.”

If Flynn were called to testify, Mariotti notes that he would be faced with telling the truth, which is good; telling a lie and then being called out by Mueller for contradicting what he told the FBI—opening him up to another perjury charge; or refusing to testify and being held in contempt of court with the potential for another pardon. But in that case, Trump may as well hang an “Obstruction” banner from the pillars in front of the White House.

Look, several weeks ago we learned that Flynn’s lawyers had stopped cooperating with Trump’s lawyers, suggesting he had flipped. Then came the plea agreement, he had indeed flipped. But this isn’t just a matter of loyalty anymore, it’s a legal matter, and Flynn’s lawyers clearly decided on a legal strategy that was best for achieving the outcomes Flynn wanted. One of the outcomes most precious to Flynn is keeping his son, Flynn Jr., out of jail.

At the moment, we are only privy to the perjury charge against Flynn, but Mueller has proven meticulous in guarding his investigation with contingencies. If Flynn were pardoned, for instance, he could still be subject to state prosecutions. Importantly, his agreement with Mueller states that he will not only cooperate with the special counsel’s office, but also with “other Federal, state, and local law enforcement authorities … in any and all matters.” That’s an unusual provision that greatly increases Flynn’s legal exposure while mitigating the effectiveness of any presidential pardon. And it likely keeps the prosecution of Flynn Jr. in the offing.

In early November, the Wall Street Journal reported that Flynn and his son Michael Flynn Jr. allegedly discussed a scheme in which they would receive up to $15 million for taking part in an extradition scheme and an extralegal “rendition” of cleric Fethullah Gülen, an opponent of Turkish President Recep Tayyip Erdogan. These allegations could be grounds for charges of bribery and conspiracy to kidnap (as well as conspiracy to assault and perhaps other violent crimes). […]

Given that, Flynn’s federal deal—which does not include any charges related to the alleged Gülen incident—preserves a number of criminal charges relating to kidnapping, assault, and bribery in Pennsylvania, as well as parallel charges in New York and possibly Virginia. State tax fraud may also be in this mix.

What Donald Trump appears to have accomplished with his “yet” comment is keeping the Russia probe in the headlines by raising the specter of obstruction with almost no discernible upside. 

Happy Friday!

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This is a Creative Commons article. The original version of this article appeared here.

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