If the president were to pardon Flynn preemptively -- meaning before his sentencing date which is not scheduled -- Flynn would not learn of his fate from a federal judge before Trump takes action.
Trump teased a pardon for Flynn on Sunday, tweeting: "So now it is reported that, after destroying his life & the life of his wonderful family (and many others also), the FBI, working in conjunction with the Justice Department, has 'lost' the records of General Michael Flynn. How convenient. I am strongly considering a Full Pardon!"
Trump is stating as fact a matter still being litigated in ongoing federal court proceedings regarding the FBI’s handling of Flynn’s interview by agents.
Flynn pleaded guilty to lying to the FBI about his discussions with Russian Ambassador Sergei Kislyak during the presidential transition in December 2016, resigning in February 2017 just weeks after Trump took office.
The retired Army lieutenant general was the first of five high-ranking advisers to Trump who pleaded guilty and offered his cooperation during the investigation by special counsel Robert Mueller into Russian meddling in the 2016 campaign.
But in a surprise move in January, Flynn's defense team filed a motion to withdraw his guilty plea citing what it said was "the government's bad faith, vindictiveness and breach of the plea agreement." Flynn's team also subsequently filed a motion to dismiss the case alleging "egregious government misconduct."
A Flynn confidant told ABC News the president appeared to be referring to arguments from Flynn's lawyer Sidney Powell, going back to November 2019. Powell argued that the original record of Flynn's interview with the FBI in January 2017 was replaced or edited. The judge has not accepted the Flynn team's argument that the government did not provide potentially exculpatory information regarding Flynn's case.
"Mr. Flynn has failed to establish a single Brady violation," Judge Emmet Sullivan wrote in a December filing, referring to a Supreme Court ruling requiring prosecutors to disclose all exculpatory evidence in criminal cases.
"While we continue to battle this out in the courts with Sidney Powell's superb leadership, and we are confident in our current strategy, we would welcome a pardon from President Trump to quickly end this three year nightmare," Flynn's brother, Joe Flynn, told ABC News in a statement.
A Justice Department spokesperson declined to comment, while also pointing to the already ongoing review of the Flynn case by prosecutor Brandon Van Grack and U.S. Attorney for the Eastern District of Missouri Jeff Jensen.
Sources told ABC News that in the last few days, despite the growing coronavirus crisis, the president has brought up Flynn to his advisers and expressed his desire to pardon him of the charges stemming from the Mueller investigation.
Some White House sources were stunned to see the president's tweet Sunday afternoon amid the national crisis.