Here’s the first and most important thing to understand about the crime for which President Trump just pardoned former National Security Adviser Michael Flynn: Flynn did not lie to protect himself. He lied to protect Donald Trump.
At the end of December 2016, Flynn had a series of conversations with Russian Ambassador Sergey Kislyak. A month later, on January 24, 2017, Flynn was asked about those conversations by the FBI agent Peter Strzok.
In the first set of conversations, Flynn urged Kislyak to oppose a United Nations Security Council resolution condemning Israeli settlement activity. The second set occurred a week later, while Flynn was on holiday in the Dominican Republic. There, Flynn sought to convince Kislyak to persuade the Russian government not to retaliate against the United States, over a round of sanctions punishing Russia for intervening in the 2016 election to help Donald Trump.
From Flynn’s own narrow personal point of view, there was no reason to lie about any of these conversations. Yes, he was pushing the limits a little bit, doing diplomacy before the new administration took office. A more elegant diplomat would have found a way to honor the rule that there’s only one administration at a time, while also communicating what he wanted the Russians to know about the differing intentions of the incoming administration. But such limit-pushing has surely happened often before in the history of American foreign policy. All Flynn had to say to avoid legal jeopardy was, “Yes, I spoke to Ambassador Kislyak. Possibly I was premature. My bad.”
So why didn’t he say that?
Flynn did not attend the notorious Trump Tower meeting on June 9, 2016, arranged on the promise that the Russian government would deliver dirt about Hillary Clinton. He was not part of Roger Stone’s conversations with Donald Trump in which, the Senate Intelligence Committee concluded, Stone discussed a back channel to Julian Assange and WikiLeaks. He was not aware of Paul Manafort’s sharing of Trump-campaign data with Konstantin Kilimnik.
Flynn had dubious dealings of his own to cover up, yes. He had failed to register as an agent of the Turkish government as he should have. But that omission—and Flynn’s lies about it—only became an issue after Flynn was caught lying about the Kislyak conversations. In the end, Flynn was never charged for violating the Foreign Agents Registration Act.
Maybe Flynn lied because he had a long, bad habit of lying. He admitted in court documents that he lied to the FBI about his Turkish work. When his security clearance was up for renewal in 2016, Flynn lied to investigators about his famous December 2015 trip to Moscow, claiming that it was paid for by U.S. businesses, when in fact it was paid for by the Russian state.
But the lie about his conversation with Kislyak was a different kind. In all those previous lies, the truth would have been damaging to Flynn. When Flynn talked to Strzok in January 2017, the truth would have been at worst embarrassing, a confession of clumsiness rather than culpable wrongdoing. So again: Why lie?
That’s a question answered by another question. Why did Attorney General Jeff Sessions misrepresent his conversations with Kislyak when asked about them during his confirmation hearings in January 2017? Like Flynn, Sessions was not involved with Trump’s other contacts with Russia. Unlike Flynn, Sessions did not have a track record of lying. Quite the contrary. Sessions is a punctilious man, attentive to the law and careful of his reputation. And yet when asked by the Senate Judiciary Committee whether he had communicated with the Russian government, Sessions replied that he “did not have communications with the Russians.”
One potential answer, I would propose, is that Sessions and Flynn lied about their conversations with Kislyak precisely because they were not in the loop on Trump’s other contacts with Russia. They knew that the swirling Trump-Russia scandal was lethally radioactive. They did not know exactly where the radioactivity was centered. They lied to protect the group secret, without themselves knowing what the group secret was. They lied about their own contacts with the Russian ambassador because they intuited that there was some terrible truth about Russia that Trump would want concealed. And because they did not know that truth, they lied extravagantly and excessively, when a guiltier person might have lied more strategically and precisely.
That’s all old news now. But the old news has become urgently relevant again with Trump’s pardon of Flynn on the afternoon of the Wednesday before Trump’s final Thanksgiving as president. Flynn lied to protect Trump. He surely did not know what specifically he was protecting Trump against. But here’s what Flynn did know: Trump wanted to undo the sanctions President Obama had imposed on Russia. That mission would be made easier if Russia did not escalate in response to the Obama sanctions. Flynn sensed that Trump’s preferred Russia policy was based on motives that everybody around Trump recognized as dangerous, even if they could not quite define where the danger lay. So when asked by the FBI about the conversation, Flynn acted like a man aware of a terrible secret that must be concealed at all costs. Trump is now pardoning Flynn to reward him for that concealment, as Trump has already commuted Roger Stone’s sentence, to reward him for his lying. Trump’s former attorney Michael Cohen was much more thickly involved in Trump’s dealings with Russia than Flynn. But he stopped lying, so, as of yet, there is no pardon for him.
A big question mark hovers over the head of Paul Manafort, the man most deeply implicated of all. Manafort has kept his mouth firmly closed. His silence helped defeat Robert Mueller’s investigation, limiting its effort to determine what, precisely, transpired between Trump and Russia. On trial and in prison, Manafort has not talked. Is his reward from Trump coming?
The president’s pardon power has traditionally been thought to be absolute. Trump’s pardons of provocateurs like former Maricopa County Sheriff Joe Arpaio, the Fox News talking head Dinesh D’Souza, and military personnel accused of war crimes stirred furious criticism, but no one denied the pardons’ validity. But Trump’s pardon of Flynn for lying to protect him, his commutation of the sentence of Roger Stone, and the even more outrageous pardons perhaps still to come? Those raise different questions. Trump is offering clemency to people who each, in varying degrees, had and still have his fate in their hands. As he pardons them, he is presumably thinking not of justice to others, but of safety for himself.
And worse may be pending, should Trump follow these self-protecting pardons with an attempt at a self-pardon. Ultimately, the U.S. Supreme Court will rule whether a self-pardon is valid. Enough legal scholars argue that it would not be that Trump’s attorneys should worry that a self-pardon won’t stick. But if Trump can buy silence with his pardons of others, he might not even need to pardon himself. The thing we do know for certain is that an administration that began amid charges of conspiracy is ending with an effort at obstruction.