No, Flynn didn’t violate the Logan Act
In December 2016, Michael Flynn was three weeks from becoming the national-security adviser to the next president of the United States.
This is a pertinent fact in evaluating the conduct underlying his plea deal with Robert Mueller. Flynn admitted to lying to FBI agents about his contacts with Russia and other foreign governments during the transition. He’s paying a steep price for his dishonesty, but from what we know so far, it’s not clear what’s supposed to be the larger scandal.
In these conversations, Flynn didn’t “collude” with the Russians about hacked emails. He informed them of Donald Trump’s posture on a policy question. Flynn went beyond the anodyne foreign contacts typical of a transition. This may be inappropriate, but it isn’t a scandal or — as the more outlandish anti-Trumpists argue — a violation of federal law.
Flynn’s most controversial act came after the Obama administration announced Russia sanctions on Dec. 29. At that point, President Barack Obama had exactly 22 days left in office. This isn’t usually the juncture at which administrations launch new foreign-policy ventures, for the obvious reason that they aren’t going to constitute the government of the United States much longer.
Usually, everyone realizes that the incoming administration has its own prerogatives that deserve respect. When the outgoing administration of George H. W. Bush embarked on the humanitarian intervention in Somalia in December 1992, it coordinated with the incoming Bill Clinton team, which supported and continued the mission.
Obama’s sanctions weren’t undertaken in a cooperative spirit — in fact, the opposite. As The New York Times reported at the time, it appeared Obama “intended to box in President-elect Trump, who will now have to decide whether to lift the sanctions on Russian intelligence agencies when he takes office next month.”
Flynn’s resulting communications with the Russian ambassador, Sergey Kislyak, wouldn’t be considered an outrage in a less poisonous political environment.
One, Flynn had no power to vitiate the Obama sanctions in late December 2016. All he could do was urge the Russians, in the words of Robert Mueller’s statement of offense, “not to escalate the situation and only respond to the U.S. in a reciprocal manner.” It’s hard to see how asking for a reciprocal response from the Russians undermined Obama policy, unless the entire point was to create a spiraling blowup with the Kremlin at the outset of the new administration.
Two, the message Flynn delivered couldn’t have been news to the Russians. Trump had been broadcasting as loudly as possible for a year and a half that he wanted a rapprochement with the Russians, and he tweeted praise of Vladimir Putin after Russia didn’t retaliate.
Three, the Obama sanctions weren’t exactly a major departure. President Obama expelled 35 suspected Russian operatives, closed down two Russian estates in the U.S. and sanctioned a grand total of four Russian intelligence officials. If this felt like a rushed, last-minute gesture toward taking Russia’s malice seriously after looking the other way for years, it’s because it was.
Finally, whatever Flynn told the Russians wasn’t as important as the fact that in less than 30 days, President Trump would have the authority to pursue any policy he wanted, from Reset Redux to Cold War 2.0.
The idea that Flynn could be prosecuted under the Logan Act for his role is a fevered fantasy. The last time anyone was indicted under the act was 1803, and the statute is meant to prevent private meddling in U.S. foreign policy, not to tie the hands of high-level officials of an incoming administration.
The fact remains that Flynn lied to the FBI about his conversation with Kislyak regarding the sanctions (and also regarding an anti-Israel U.N. resolution). Perhaps Flynn felt a cognizance of guilt for reasons that aren’t immediately apparent, and perhaps he knows worse things about the Trump transition and the campaign. For now, his untruths look much more blameworthy than his actions.