“[A] pardon does not necessarily render ‘innocent’ a defendant of any alleged violation of the law,” Sullivan wrote. “Indeed, the Supreme Court has recognized that the acceptance of a pardon implies a ‘confession’ of guilt.”
And, as an apparent last word on the case, Sullivan criticized the Justice Department’s reasoning to want to dismiss Flynn’s case, calling it a pretext and not in line with legal standards.
The judge’s analysis lands as speculation mounts in Washington about pardons Trump might give in his last days in office and a recent revelation that the Justice Department was investigating but hadn’t charged anyone with a possible pardon-bribery scheme related to the Trump White House.
In some ways, Sullivan’s opinion in the Flynn case serves as a hint that judges could push back on ultra-broad or unspecific pardons Trump might make, especially if they are preemptive for crimes future administrations might attempt to prosecute.
Three years of legal maneuverings
In December 2017, Flynn became one of the most significant and earliest defendants to plead guilty and cooperate in the Mueller investigation. He admitted to lying to the FBI about his contacts with Russia during the Trump presidential transition in 2016, and secretly lobbying for Turkey.
Earlier this year, Flynn — represented by a new set of lawyers, including Sidney Powell — and the Justice Department attempted to undo his guilty plea in court.
The case often has fueled Trump’s smears of Mueller’s investigation as a “witch hunt,” leading to the eventual pardon last month.
The Justice Department had argued to Sullivan that Trump’s pardon excuses Flynn from being held in contempt by the court, for admitting under oath that he is guilty of his crimes and, later, claiming he is innocent. Sullivan didn’t comment on that in the opinion Tuesday.
Trump’s order pardoning Flynn says the former general and intelligence official is forgiven for lying to the FBI; covering up his secret lobbying for Turkey; and any more charges “that might arise” related to his admissions or to the Mueller investigation.
Sullivan noted that Trump’s pardon says it excuses Flynn not only of his admitted crimes, but also of “any and all possible offense” in the future that could relate to him or the Mueller investigation.
Sullivan said he had looked only at the specifics of the pardon related to Flynn’s charge of lying to the FBI and his admission of omitting his foreign lobbying for Turkey in 2016 on Justice Department forms.
“The history of the Constitution, its structure, and the Supreme Court’s interpretation of the pardon power make clear that President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one. Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot,” Sullivan wrote.
Though it’s not necessary following a pardon, the Justice Department still asked the judge to dismiss Flynn’s case — doubling down on one of the most controversial and political decisions made by Attorney General William Barr.
Tuesday, Sullivan said he would have had the authority to deny the Justice Department’s motion to drop the case and he described that decision, which he had considered, as a “close” call.
He wrote that the Justice Department’s reasons to dismiss Flynn’s case were “dubious to say the least” and that “the corrupt dismissal of politically well-connected individuals would also constitute an abuse of discretion.”
“Whether or not the FBI agents thought Mr. Flynn was lying is irrelevant in a false statements case,” Sullivan added, noting that both Flynn and the Justice Department had tried to suggest the FBI had been wrong in its approach to interviewing Flynn, which had led to his prosecution.
But the pardon superseded the disputes over the case.
Typically, presidents give pardons to defendants who serve their time and accepted the responsibility for their crimes.
Flynn has done neither. He avoided being sentenced in 2018 and again in 2019, has engaged in the QAnon conspiracy movement and has backed Trump’s attempt to overthrow the electoral vote.
This story has been updated to include a tweet from President Donald Trump.