The Framing of Flynn and the Logan Act

Comments on the revelations about the FBI's effort to put Michael Flynn in a fork whereby he either admitted to a crime or lied to the agents have been vague about exactly what crime he was suspected of.

The answer is a violation of the Logan Act, and understanding this makes the FBI's actions even more despicable than one might have thought.

The Logan Act, passed in 1799, says:

Any citizen of the United States, wherever he may be, 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, 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 or imprisoned not more than three years, or both.

The Encyclopedia Britannica provides the background, which involved the volatile relations between the U.S. and France during the Napoleonic era.  Four facts about the law are crucial:

First, it has never been used.  One indictment was filed over 200 years ago, but no one has ever been convicted, and no one else even charged.

Second, it is an impossible law.  Anyone who communicates with a foreign official for any purpose could be accused of a violation.

Third, taking the words at face value, this must be one of the most violated laws on the books, given the number of U.S. citizens who have communicated with foreign officials during the past 221 years.  In particular, all incoming U.S. administrations quickly establish channels to smooth the transition and avoid drift during the interregnum.  And the mind boggles when considering how many congressmen violate it all the time.

Fourth, because of these realities, everyone has simply ignored the existence of the law.  But this means that it has never been cabined by sensible judges and has never bitten deeply enough to incentivize any serious effort at repeal.

To the Democrats and the Deep State, this spelled opportunity.

Flynn was interviewed by the FBI on Jan. 24, 2017 and pushed out as national security adviser a few weeks later, after conversations between White House counsel and acting A.G. Sally Yates.  Yates, apparently, hinted that Flynn might be subject to blackmail by the Russians over an earlier telephone call with Soviet ambassador Sergey Kislyak.  The exact nature of his offense was not spelled out, but later Yates said he was suspected of violating the Logan Act because he had discussed with the ambassador the U.S. sanctions against Russia.  During the rest of 2017, as documented by Byron York, the Democratic/MSM echo chamber resounded with dark ruminations about the Logan Act and horror that it might have been violated.  York confirmed that the Logan Act was at the heart of Yates's representations to the White House.

So when the FBI agents went to interview Flynn, they had the transcript of his call, and they must have expected him to admit that, yes, he had talked substantive matters, sanctions in particular.  Or he might deny it.  Flynn is an intelligence professional, and need-to-know is in his DNA; what need did two random FBI agents have to know about his talk with Kislyak?  Either way, they had him.

In the event, Flynn denied such a discussion with Kislyak, but in a way that convinced the interviewing agents of his veracity.  Subsequently, he has said he simply does not recall any discussion of sanctions but cannot swear that there was none.

The best guess is that it was too early in the administration for hard policy discussions.  Flynn and Kislyak probably traded mutual expressions of goodwill and desire for improved relations, and both men would have understood perfectly that the sanctions were going to get a serious review.  This would be consistent with what Flynn told VP Pence at the time.

The DOJ has refused to release the transcript, which creates a suspicion that its assertion that sanctions were discussed is untrue or is at best an implication based on the general expressions of goodwill.  If this interpretation is correct, they wanted Flynn to admit discussing sanctions precisely because he had not in fact directly discussed them.

One might wonder how Yates and her minions could have thought a Logan Act charge would stick, given the history of the statute, even if Flynn admitted to substantive discussions.  Well, they had excellent reasons.  The MSM echo chamber would tut-tut about the seriousness of it all, and a Progressive judge would exclude any evidence of selective prosecution so the jury would never know.  A conviction would probably be reversed on appeal for any of several constitutional defects, but that would be two or three years down the road.

If this scenario seems dubious, look at the fate of former Virginia governor Bob McDonnell, convicted on a way-out legal theory that was reversed by the Supreme Court only after he was politically and financially ruined.

In the event, the FBI and DOJ decided that the charge of "lying to the FBI" was a better way to go, and they then brought extreme pressure on Flynn to plead guilty and to avoid any need to disclose the transcript that would (probably) show that he was in fact not guilty of any Logan Act offense.

As the case against Flynn has fallen apart, the Logan Act has receded into the background.  But vague statutes selectively enforced for political reasons are the stuff of tyranny, and the law stays on the books as a weapon, ready to the hand of some future Deep-Stater with a political grudge.

James V DeLong is a retired lawyer, government official, and think-tank analyst.

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