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BRESTICKER: What the Michael Flynn case says about the rule of law under Trump

The recent pardon of Lt. Gen Flynn serves as another example of the corrosive impact that Trump has had on the judicial system

From Nov. 2016 to Jan. 2017, Flynn had an influential role in President-elect Trump’s transition team and later briefly served as National Security Advisor.
From Nov. 2016 to Jan. 2017, Flynn had an influential role in President-elect Trump’s transition team and later briefly served as National Security Advisor.

The premise that no man is above the law is an ideal that dates back to 1215 when a collection of barons met on the plains of Runnymede to present King John the Magna Carta. Through highs and lows, this simple notion has been foundational to the development of English and later American common law. However, the prosecution and recent pardon of Lieutenant General Michael Flynn serves to show that under the presidency of Donald J. Trump, friends of the president may actually be above the law. A simple detailing of the facts surrounding the Flynn case serves as a useful case study into how President Trump and Attorney General William Barr have managed to corrupt the administration of justice in the United States.

From November 2016 to January 2017, Flynn had an influential role in President-elect Trump’s transition team and later briefly served as National Security Advisor. After President Trump took office, Special Counsel Robert Mueller’s office charged Flynn with perjury and other offenses related to his work as a foreign lobbyist. On both Dec. 1, 2017 and Dec. 18, 2018, Gen. Flynn pled guilty to all charges.

For those outside the president’s orbit, a guilty plea would typically result in one being sentenced. However, Gen. Flynn’s admission of guilt only signaled the beginning of a series of wildly unprecedented events. On May 7, 2020, after substantial lobbying on the part of his legal team and pressure from the president,  the Justice Department made the unusual move of motioning to dismiss all charges against Gen. Flynn. The reaction to this motion was immense with 2,300 DOJ alumni signing a public letter condemning this flagrant act of favoritism. 

The judge overseeing the Flynn case, Emmet Sullivan, also appeared to be skeptical of the government's motion. In a minute order, he made the extraordinary move of appointing a magistrate judge to investigate the Justice Department’s rationale. The eventual brief submitted by the appointed magistrate, John Gleeson, was incredibly damning in that it described the government’s motion as a “corrupt and politically motivated favor unworthy of our justice system.” The fact that the backlash to the government's motion was both extremely vocal and extremely public, only serves to underscore the egregious level of corruption and political interference within this case. 

Yet, in the end, all this opposition to the Justice Department's motion ultimately appears to be futile. On Nov. 25, President Trump, in the waning days of his presidency, issued a full pardon of Michael Flynn. As a result, Gen. Flynn will never be held accountable and the Attorney General’s political interference in this case will go unpunished. While I do not contest the constitutionality of a presidential pardon, there is something ethically unacceptable behind the idea of a president using his power to free his close confidants who are unambiguously guilty. Normal Americans who plead guilty twice to multiple felonies do not receive the luxury of having charges miraculously dropped against them nor presidential pardons. Under President Trump, there appear to be two sets of rules — one for those close to the president and one for everyone else. 

The president’s right to issue pardons and commutations is enshrined in Article II, Section 2 of the Constitution, and there currently exist no limitations on who may be the recipient of such actions. In the 233 years since the ratification of the Constitution, there have indeed been controversial exercises of the president’s pardon power— such as President Ford’s pardon of Richard Nixon in 1974. Yet for modern presidents, the precedent has been for pardons to be granted to those one believes to be deserving of mercy — be it draft dodgers under Carter or non-violent drug offenders under Obama. Trump evidently views the power to pardon differently. The recent pardons for Gen. Flynn and others demonstrate an alarming willingness to abuse his constitutionally prescribed powers to ensure that none of his supporters nor friends are held accountable. This is all the more troubling considering that many of these crimes may have been perpetrated in order to directly benefit the president.

Perhaps the most tragic part of the Flynn saga is not the wanton corruption that it symbolizes, but the fact that this will likely only be a minor footnote in future accounts of the Trump presidency. What would have proved damning to Trump’s predecessors, will likely be overshadowed by the president’s other acts of impropriety — such as his interference in the sentencing of Roger Stone, impeachment for abuse of power, being named an unindicted co-conspirator in a felony fraud case and his all but indictment for obstruction of justice in the Mueller report. President Trump may have been defeated at the ballot box, but his enablers and those who share the president’s same disregard for both our laws and customs still inhabit the halls of Congress. Moving forward, it is incumbent upon American citizens to take a critical look at their candidates and representatives to ensure that they truly act in a manner and dignity that is becoming of the offices they hold.

Taken in a vacuum, the president’s pardons and apparent contempt for the rule of law are not gravely concerning nor do they significantly impact the lives of everyday Americans. However, the true danger of Donald Trump is that his outrageous and precedent-breaking actions may be seen as an impetus for future presidents to act in a similar if not more corrosive manner. An executive that does not respect the equal application of the law strikes at the very heart of our constitutional republic. No American should want to live in a nation where those close to the president are exempt from prosecution. Hopefully, the morally bankrupt nature of the Trump presidency will prove to be only an anomaly in the moral history of the United States. But should another demagogue emerge, it is imperative that we do not allow them to so thoroughly undermine the rule of law with the same impunity that Trump has enjoyed.

Max Bresticker is an Opinion Columnist for The Cavalier Daily. He can be reached at opinion@cavalierdaily.com.

The opinions expressed in this column are not necessarily those of The Cavalier Daily. Columns represent the views of the authors alone.

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