The Progressive


A project of Common Dreams

For Immediate Release

Amicus Brief in US v. Flynn Challenges Trump's Pardon of Flynn as Corrupt and Unconstitutional

Free Speech For People Requests Permission to File an Amicus Brief Outlining the Constitutional Violations of Trump’s Presidential Pardon of Former National Security Advisor Michael Flynn


Free Speech For People, a national nonpartisan organization, is challenging President Trump's pardon of former National Security Advisor Michael Flynn as "self-dealing" and unconstitutional.

Free Speech For People filed a motion on December 1, 2020, requesting permission to file an amicus brief in the U.S. District Court for the District of Columbia, where Flynn has twice pleaded guilty and was awaiting sentencing for lying to investigators in an effort to protect Trump. The proposed amicus brief lays out a four-part argument as to why the court should declare Trump's pardon of Flynn invalid under the US Constitution. The president's "Executive Grant of Clemency" purports to pardon Flynn for a broad range of vaguely-described misconduct, including not only the felony charges of making false statements to federal investigators in January of 2017, but also other unspecified offenses, such as "any and all possible offenses arising out of facts and circumstances ... in any manner related to the investigation of the Special Counsel."

"The President's constitutional power to pardon is broad, but it is not absolute," the proposed amicus brief reads. "The original public meaning of the Faithful Execution Clauses [of the Constitution] is that they limit the President's power by requiring him to exercise it in good faith in the public interest--not corruptly in his self-interest."

The brief argues that the Court should examine the "substantial evidence" indicating that "the 'Executive Grant of Clemency' issued by President Trump to the defendant was not made in good faith for the public interest, but rather for reasons of self-dealing, self-protection, or other bad faith personal purposes, and therefore violated the Faithful Execution Clauses." Citing public statements of Trump and the White House, as well as Trump's history of abusing the pardon power to insulate himself from testimony of his co-conspirators and his retaliation against co-conspirators who testify truthfully, the brief argues that this is yet another example of Trump seeking to reward a co-conspirator for protecting him and to assure his continued protection from any future investigation or prosecution.

Free Speech For People is requesting that the Court inquire further into the extent to which the President's grant of clemency was made in his own narrow self-interest, rather than any plausible conception of the public interest. If so, it argues the Court should deny the Justice Department's request to dismiss the case and instead continue with sentencing.

Federal Judge Emmet Sullivan will decide whether to allow the amicus brief.

Read the motion here.

Read the amicus brief here.

Free Speech For People is a national non-partisan non-profit organization founded on the day of the U.S. Supreme Court's ruling in Citizens United v. FEC that works to defend our democracy and our Constitution.