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Tuesday, December 08, 2020

Pardons and Mootness

Judge Sullivan has dismissed the prosecution of Michael Flynn in light of the President's pardon.

Interestingly, Sullivan dismisses the cases as moot and I do not understand why. The opinion discusses the understanding that acceptance of a pardon implies a confession of guilt, while exempting the individual from the punishment the law inflicts for a crime committed. Because the pardon does not render Flynn innocent of the crime charged, the appropriate course is to dismiss as moot.

I do not see why that follows. Dismissal on the ground of actual innocence is not appropriate. But saying the pardon "exempt[s]" the individual from the usual punishment for a crime suggests a dismissal of the prosecution because the pardon has placed Flynn beyond the reach of the law. That sounds in the merits--not actual innocence, but the scope and application of a law to an individual and an individual's conduct, which Morrison says is the merits. It sounds in an immunity, which is usually (and properly) seen as merits. It does not sound in an outside change of circumstances depriving the court of its power to accord meaningful relief or resolution to a dispute. (contra a defendant dying while the case is pending).

Consider it from the other direction. Imagine Trump grants himself a pardon for all conduct violating federal law prior to January 20, 2021. The U.S. prosecutes, Trump moves to dismiss the indictment based on the pardon, and the court decides that a self-pardon is valid. It seems to me the court would dismiss that indictment, finding the prosecution cannot proceed because Trump is, by virtue of the pardon, exempt from that law and its ordinary consequences. I do not think that court would dismiss as moot. So it should not be different because the pardon came before the prosecution was initiated as opposed to after.

Posted by Howard Wasserman on December 8, 2020 at 02:59 PM in Howard Wasserman, Judicial Process | Permalink


You beat me by less than a minute! And great minds think alike on the repeal-while-case-is-pending scenario.

Posted by: hardreaders | Dec 8, 2020 7:59:10 PM

I don't even pretend to be an expert on TV (or the interwebs, for that matter), but the questions of a pardon's validity and its effect when validity is undisputed would seem to be different.

And Prof. W.'s analogy to an immunity defense (of the absolute variety) seems a lot more on point than some kind of dispute over gerrymandering. Maybe another possible analogy is where Congress repeals the law in question while the defendant's case is still pending on appeal.

Without having spent full quality time yet, I did glance at the relevant portion at least. The reasoning is minimal. He only cites to one case in CADC, Schaffer, with a See, e.g. In turn, as far as I can tell, Schaffer relies almost entirely on ipse dixits for this issue. The one time it does cite a case is U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship. But U.S. Bancorp--as one could almost tell just from the caption--has nothing to do with pardons. Roughly, the cited part only discusses actions that should be taken once a case becomes moot.

For fun, I poked around the criminal rules and the public-facing DOJ criminal manual, but I don't see any other authority one way or the other about dealing with pardons. So I guess I can't fault the judge for applying on-point circuit law, especially when the motion is truly not contested (the amicus didn't file any response to this one, correct?).

Still, I agree with Prof. W. it's an odd feeling to dismiss "as moot". Why not just dismiss *outright*? For example, why not just renew/amend/update the original Rule 48 motion with the added ground of the pardon? In that case, it seems like the judge really would have no discretion but to grant it.

Posted by: hardreaders | Dec 8, 2020 7:26:59 PM

The PQD is bad enough; extending it here is insane.

In the districting case you suggest, I agree that the original complaint (v. old district) would be moot, but the amended complaint (v. new district) would be dismissed or leave to amend would be denied on PQD.

As I was writing the OP, I was thinking maybe there is a difference depending on whether it is a pre-enforcement v. enforcement case. If Flynn were challenging the constitutional validity of a law and then received a pardon while the case were ongoing, I think the dismissal would be for mootness. But a pending enforcement action should not be mooted in the same way.

For a different comparator, Congress repeals a statute. A pending pre-enforcement EPY challenge would be dismissed as moot. But what would a court do if an enforcement action is pending against an individual when the law is repealed (assume repeal is retroactive)? It would dismiss--but it should be because there is no law to enforce, not because of mootness.

Posted by: Howard Wasserman | Dec 8, 2020 7:26:15 PM

I saw a quote where he seems to say the pardon's validity is a political question, so perhaps he doesn't see the pardon as a defense on the merits, but an event that has made the case nonjusticiable. Imagine a suit claiming that elections are being held under a map contrary to a state's actually enacted districting map. Then the legislature ratifies the map as administered. Then the plaintiff seeks to amend to challenge the map as a partisan gerrymander. But that question is nonjusticiable. I could imagine someone saying the change in law moots the case.

Posted by: Asher Steinberg | Dec 8, 2020 5:39:17 PM

I haven't been able to spend quality time with the opinion yet, but your take on it sounds exactly right. Maybe there's a nuanced point going the other way that will only become apparent once said quality time has been spent.

Posted by: hardreaders | Dec 8, 2020 3:42:12 PM

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