Implications of the Flynn Pardon
By John Yoo
November 25, 2020 8:35 PM
President Trump’s pardon not only ends any injustice to Flynn, but it restores the proper balance to the separation of powers.
Then-national security adviser General Michael Flynn delivers a statement at a daily briefing at the White House in Washington, D.C., February 1, 2017. (Carlos Barria/Reuters)
President Trump’s pardon not only ends any injustice to Flynn, but it restores the proper balance to the separation of powers.
President Trump granted a pardon to Michael Flynn, his former national-security adviser, today. Flynn had pled guilty to lying to FBI agents about conversations, during the 2016 transition, with the Russian ambassador about sanctions. Flynn’s pardon should bring to an end one gross violation of the Constitution’s separation of powers, even as it gives rise to groundless accusations of another.
Although Flynn had pled guilty, the circumstances of the case had raised serious concerns about whether the government had proceeded properly. The FBI, for example, questioned Flynn even though it did not appear he had violated any law. In May, Attorney General William Barr ordered the case dropped. Under the Constitution, only the president has the responsibility and duty to see that “the Laws be faithfully executed.†From this clause flows the executive branch’s prosecutorial discretion — the sole right to decide what cases to prosecute or not. As I explain in my book, Defender in Chief: Donald Trump’s Fight for Presidential Power, in normal times, a president’s decision to drop a prosecution is final and unreviewable by any other branch.
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https://www.nationalreview.com/2020/11/implications-of-the-flynn-pardon/
