On Flynn, the Logan Act dog won't hunt

Apparently, the upshot on Mr. Mueller and the Flynn plea bargain is that there is not a shred of evidence that anybody remotely connected to Team Trump sought out illegal Russian help in the 2016 elections.  No, it's all about a Logan Act violation after the election, when Mike Flynn asked the Russians to veto a U.N. resolution condemning Israel!  That's kind of an interesting hill for the Trump-haters to want to die on – especially all those Republican NeverTrump Israel hawks (Kristol, Boot, Rubin, etc.).

Now, the Logan Act is dead-letter law, just like its repealed cousins, the Alien and Sedition Acts.  It could never be successfully used today under 1st Amendment case law. No one has ever even been brought to trial under it.  But gotta get Trump, and any old thing will do, I guess.

I even see where two law professors have just a written a rather lame and unconvincing defense of the Logan Act's viability in the New York Times.  (One of them, Eric Posner, just had his lunch eaten by the Supreme Court on the travel ban, for what it's worth.)  

Now, call me an old-fashioned originalist if you must, but I happened to also do an odd thing for a modern lawyer: I actually went back and read the statute.  Even for all its sweeping and general language, the actions of Gen. Flynn and his superiors are not in violation of the Logan Act.

It states that any citizen "who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title[.]"

Now, recall that Mr. Obama did not veto the U.N. resolution or vote for it; he abstained.  So where is the dispute or controversy or measure of the United States here with regard to Russia or Israel?  Mr. Obama completely abandoned the field.  The president disclaimed all interest in the matter, as officially and publicly as it gets – by vote of the U.S. in the Security Council.  There is simply no action against any U.S. interest at the time.  Any U.S. citizen was free to lobby foreign governments for or against the vote, as the U.S. had no position at all.

Not that it will ever reach this stage, but it would be fun to see Mr. Obama explain under oath why this U.N. resolution was so damn important to his outgoing administration that he completely abstained from voting at all either way.  Yet again, we see the enduring legacy of Barry Obama, the little man who wasn't really there. 

Frank Friday is an attorney in Louisville, Ky.

Apparently, the upshot on Mr. Mueller and the Flynn plea bargain is that there is not a shred of evidence that anybody remotely connected to Team Trump sought out illegal Russian help in the 2016 elections.  No, it's all about a Logan Act violation after the election, when Mike Flynn asked the Russians to veto a U.N. resolution condemning Israel!  That's kind of an interesting hill for the Trump-haters to want to die on – especially all those Republican NeverTrump Israel hawks (Kristol, Boot, Rubin, etc.).

Now, the Logan Act is dead-letter law, just like its repealed cousins, the Alien and Sedition Acts.  It could never be successfully used today under 1st Amendment case law. No one has ever even been brought to trial under it.  But gotta get Trump, and any old thing will do, I guess.

I even see where two law professors have just a written a rather lame and unconvincing defense of the Logan Act's viability in the New York Times.  (One of them, Eric Posner, just had his lunch eaten by the Supreme Court on the travel ban, for what it's worth.)  

Now, call me an old-fashioned originalist if you must, but I happened to also do an odd thing for a modern lawyer: I actually went back and read the statute.  Even for all its sweeping and general language, the actions of Gen. Flynn and his superiors are not in violation of the Logan Act.

It states that any citizen "who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title[.]"

Now, recall that Mr. Obama did not veto the U.N. resolution or vote for it; he abstained.  So where is the dispute or controversy or measure of the United States here with regard to Russia or Israel?  Mr. Obama completely abandoned the field.  The president disclaimed all interest in the matter, as officially and publicly as it gets – by vote of the U.S. in the Security Council.  There is simply no action against any U.S. interest at the time.  Any U.S. citizen was free to lobby foreign governments for or against the vote, as the U.S. had no position at all.

Not that it will ever reach this stage, but it would be fun to see Mr. Obama explain under oath why this U.N. resolution was so damn important to his outgoing administration that he completely abstained from voting at all either way.  Yet again, we see the enduring legacy of Barry Obama, the little man who wasn't really there. 

Frank Friday is an attorney in Louisville, Ky.

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