Why Michael Flynn Is Walking Free

The FBI notes set off a firestorm in conservative media, which argued that Flynn had been unfairly targeted by the bureau. The putative concern over unfair prosecutions rings false for Trump and his allies, who have demanded iron-fisted “law and order” in cases that don’t involve the president’s cronies. Moreover, many legal experts believed that the notes were insufficient to convince Judge Emmet Sullivan that Flynn was entrapped.

But as it happened, the notes didn’t have to convince Sullivan, because the Department of Justice withdrew the charges before the judge had to reach a conclusion. (Sullivan could still reject the DOJ’s motion. The long-running prosecutor on the case abruptly withdrew from it today, a likely sign of disagreement, and The New York Times reports that the motion stunned prosecutors in the U.S. attorney’s office.) Flynn’s defenders argued that the FBI was out to get him, and if the FBI is out to get you, it will find a way. But there’s a corollary: If Attorney General William Barr’s Justice Department wants to let you off, it will find a way too.

The whole process is stunning: Flynn was accused of committing several crimes, admitted to one to try to get himself off easy, agreed to cooperate, reneged on the deal, and is now free, having escaped punishment for both the crime to which he confessed and those on which he avoided prosecution.

Yet Flynn’s escape is not merely an isolated outrage. It is also a test case for loyalty to Trump. Since Flynn flipped on Trump, and then flopped back, his fate offers a lesson for others who might find themselves in a bind and tempted to turn on Trump, who continues to engage in the sort of behavior that got him impeached.

Read: The expanding investigation into Michael Flynn

If there is any doubt about the White House’s role, the president telegraphed the outcome of this case on April 30, when he was asked whether he’d pardon Flynn. Trump said he didn’t think he’d have to.

“Well, it looks to me like Michael Flynn would be exonerated based on everything I see,” he said. “Look, I’m not the judge, but I have a different type of power. But I don’t know that anybody would have to use that power.”

This wasn’t just good guessing—it was a self-fulfilling prophecy. The Trump-Barr Justice Department appears to have different standards based on one’s political allegiance: For Trump critics, such as former FBI Deputy Director Andrew McCabe, and political opponents, such as the Biden family, it looks high and low for a way to investigate or prosecute, leaning on novel or untested legal theories. But for loyalists (even a prodigal loyalist such as Flynn), it offers the benefit of every doubt, or at least does its best to soften the penalties (as it did for Roger Stone).

Cooperation deals are supposed to show criminals that returning to the fold and honoring rule of law has its benefits. But the Flynn case shows that those benefits pale in comparison to honoring loyalty to Trump.

David A. Graham is a staff writer at The Atlantic.