08 May 20
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FOCUS: Why Michael Flynn Is Walking Free
ALSO SEE: Don't Forget, Michael Flynn Pleaded Guilty. Twice.
David A. Graham, The Atlantic
Excerpt: "The former national security adviser figured out that loyalty to Trump is now a better bet than loyalty to the rule of law."
ichael Flynn was an early, instinctive Trumpist.
The retired general was an enthusiastic backer of Donald Trump’s candidacy, leading chants of “Lock her up!” at the 2016 Republican National Convention. And his less public work bore the hallmarks of Trumpism too: brazen lying, shameless profiteering, conspiracy-mongering, and bigoted tweeting.
Nonetheless, Flynn didn’t immediately grasp how much the rules of the game changed when Trump won the 2016 election. When Flynn, the newly minted national security adviser, got in trouble with the law, he quickly took up the standard playbook of white-collar criminals in pre-Trump America. When the FBI caught him lying, Flynn copped a plea and agreed to cooperate with the government in exchange for a lesser sentence.
Only after that December 2017 plea deal did Flynn grasp the new reality: Cooperating with authorities might get you off easy, but staying loyal to the president will get you off entirely. So even though he’d already pleaded guilty to lying to the FBI, Flynn changed his mind, tried to withdraw his plea, and began fighting the prosecutors he’d promised to help tooth and nail.
It was a bold move, the sort of unorthodox strategy for which he’d become famous as an intelligence officer. And today it paid off, as the government moved to drop all charges against Flynn. The reversal, from confessed felon to scot-free, is a microcosm of how dramatically the rule of law has weakened during the Trump administration.
Flynn was fired from the White House in February 2017, just days into his tenure as national security adviser. Before Trump’s inauguration, Flynn discussed U.S. sanctions against Russia with the Russian foreign minister. But Flynn lied about those conversations to FBI agents. He also lied about them to Vice President Mike Pence, which was the reason given for his dismissal. (Flynn was not forced out when the president learned of the deception, but only when it was reported in The Washington Post.)
Flynn had a host of other problems too. He had lied repeatedly about taking money from the Turkish government for lobbying, failing to file required documents. He appeared to have lied about who paid for a 2015 trip to Russia, where he sat with Vladimir Putin. He was also involved in an arcane for-profit nuclear-reactor scheme in the Middle East. (One clear takeaway of the investigation is that, potential criminal acts aside, Flynn had no business getting anywhere near the sensitive job of national security adviser.)
Given these many legal problems, Flynn did what many prudent defendants do: He agreed to work with prosecutors in exchange for pleading guilty to only a small part of the many possible charges against him—in this case, lying to the FBI. But the longer he had a chance to see Trump in action, and to see how easily the president obliterates the supposed safeguards for rule of law, the more Flynn seemed to have second thoughts. Why take your chances with a charge and potential sentence, when you could instead return to the fold and let the president take care of you? So Flynn fired his lawyers; hired new, brasher ones; and announced that he wanted to withdraw his plea. The new attorneys got results instantly: Trump started tweeting positively about Flynn, suggesting that he was some sort of martyr.
The immediate predicate of the government’s move to dismiss the charges today was the release in April of FBI notes about its interviews with Flynn. Among the notes, an unidentified FBI employee wrote, “What is our goal? Truth/admission or to get him to lie, so we can prosecute him or get him fired?” The notes are the latest example of dubious FBI behavior. As a recent Justice Department inspector-general report found, the FBI has repeatedly abused rules for obtaining warrants under the Foreign Intelligence Surveillance Act. As I have written repeatedly during the Trump administration, the FBI’s long record of abuse means that its statements cannot be taken at face value; the bureau will look out for its own interests, and break the rules to do so if it must. (There is no evidence, contra Trump’s claims, that Flynn was politically targeted by the Obama administration.)
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.
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.
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