Slate: How Mueller's deal with Flynn neutralizes Trump's pardon power [View all]

[highplainsdem]

Found this thanks to a tweet from Laurence Tribe

Link to tweet

who calls it a "very perceptive analysis."

"Robert Mueller Has a Plan: How the special counsel’s deal with Michael Flynn neutralizes Trump’s pardon power."

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/12/robert_mueller_s_deal_with_michael_flynn_neutralizes_trump_s_pardon_power.html

I write here to make three points. 1) The plea deal continues Robert Mueller’s strategy of neutralizing Trump’s pardon power. 2) The obstruction of justice charge against Trump just got a whole lot stronger. 3) Everyone is rightly focusing on Trump, but Vice President Mike Pence and White House Counsel Don McGahn are in bigger trouble than ever.

Mueller’s charges and Flynn’s plea still leave open the possibility of state charges, just in case Trump pardons Flynn federally. Presidential pardons apply only to federal crimes. I’ve written before about how Mueller’s prosecutorial strategy required him to navigate complicated state-level double jeopardy rules. His charges against Paul Manafort, Rick Gates, and George Papadopoulos reflected a sharp strategy to bring certain charges, while leaving plenty of others available to state prosecutors. (I’ve provided a long list of state crimes that relate to Trump-Russia allegations.)

Let me spell out how this strategy would apply to Flynn. The former national security adviser has pleaded guilty to one charge of making a false statement to the FBI. What are the other charges a state prosecutor could bring?

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).

The state of Pennsylvania, where Gülen resides, offers extra protections against double jeopardy beyond the rights guaranteed by the federal Fifth Amendment. The Pennsylvania Supreme Court holds that “a subsequent prosecution and imposition of punishment for the same offense will not be permitted unless the Commonwealth’s interests are substantially different from the interests of the jurisdiction that initially prosecuted and imposed punishment.” 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.

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