There’s a chance President Trump’s pardon of Michael Flynn could backfire some day.
Trump on Wednesday pardoned Flynn, his first national security adviser. In 2017, Flynn pleaded guilty to lying to the FBI about his contact with former Russian Ambassador Sergey Kislyak. Flynn’s sentencing was delayed while he cooperated with former Special Counsel Robert Mueller’s investigation, but earlier this year, Flynn’s new legal team accused prosecutors of misconduct and asked to have his guilty plea withdrawn.
But Trump’s pardon, which he announced in a tweet, means Flynn will theoretically no longer be protected from self-incrimination under the 5th Amendment should he ever be called to testify against Trump.
Not saying the President’s legal advisors aren’t the best, but by pardoning Flynn, he’s taken away Flynn’s ability to plead the 5th when asked to testify about the President’s involvement. Quite the high risk manoeuvre.
— Ben Hammersley (@benhammersley) November 25, 2020
As Harvard Law professor Laurence Tribe explained to Time in 2017, “anyone pardoned by Trump would lose most of the 5th Amendment’s protection against compelled testimony that might otherwise have incriminated the pardoned family member or associate, making it much easier for [the Justice Department] and Congress to require such individuals to give testimony that could prove highly incriminating to Trump himself.”
There are some caveats, of course. While there is speculation Trump could face criminal charges at some point post-presidency, there is no evidence that will happen. Even if it did, it’s still unclear exactly what Flynn is being pardoned for, since, as Politico notes, he was criminally exposed both for lying to investigators and “acting as an unregistered agent for Turkey.” So if the pardon is specific, there’s a chance Flynn would still have that protection. Tim O’Donnell
Q re: Flynn pardon and 5th Am right against self-incrimin. This rt is waived only w/r/t to illegal conduct he was pardoned for—lying to FBI re: contacts w/ Rus amb, right? I.e., hypothetically if Flynn conspired in some unrelated scheme, he retains 5th Am there? @AshaRangappa_
— John Kruzel (@johnkruzel) November 25, 2020