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Flynn and the Logan Act

February 14, 2017

A few years after assisting the 13 American colonies in our Revolutionary War against the British, France entered into its own revolutionary period, ending its monarchy and establishing the First Republic in 1792. The Republic spent the first ten years of its 12-year life at war with the monarchies of Austria, Britain and Prussia, which were displeased at the spread of revolutionary ideas to Europe.

Although the United States proclaimed its neutrality in the war, the U.S. stopped paying its Revolutionary War debt to France, arguing that the debt was owed to the previous regime, not to the Republic. The Republic responded with an embargo on American trade, and French privateers began seizing American ships to be sold to pay the debt to France. American attempts to initiate negotiations were unsuccessful, ending when President John Adams informed Congress in April 1798 of the XYZ Affair, in which three French diplomats demanded bribes before negotiations could begin.

On Adams’s warning of the possibility of war, Congress created the Marine Corps and re-created the Navy, to protect American shipping. On July 7, 1798, Congress revoked the 1778 treaty of alliance with France. On July 9, Congress authorized the Navy to attack French warships in American waters.

A Pennsylvania state legislator, George Logan, who was a pacifist and a member of the Democratic-Republican opposition to Adams’s Federalists, had sailed for France on June 12, 1798. Acting as a private citizen, Logan met with French officials in an effort to head off the war that was almost certainly on its way. Logan informed them of the degree of anti-French feeling in America, and urged France to take steps to ease tensions.

History tells us that the Directory of the First Republic had already decided to back away from its hostile position toward the United States. But as it happened, within days after Logan’s last meeting with French officials, France lifted its embargo against trade with America and released American merchant seamen from detention.

Logan’s unofficial and unauthorized mission thus appeared to have been a big success, and he was greeted as a hero upon his return to the States, especially by Thomas Jefferson’s Democratic-Republicans, who were generally pro-French, in contrast to Adams’s generally pro-British Federalists.

Federalists were incensed at Logan’s reception. Even former President George Washington condemned Logan’s actions. The Adams administration urged Congress to “act to curb the temerity and impudence of individuals affecting to interfere” in disputes between the United States and other countries. The result was the Logan Act, which was quickly passed by Federalist majorities in both houses of Congress, and was signed into law by President Adams on January 30, 1799.

The full text of the Logan Act reads:

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, 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 or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

The Act thus clearly prohibits entry into discussions with a foreign government or its representatives, with intent to influence that government’s conduct “in relation to any disputes or controversies with the United States.” And because the Act was motivated by Logan’s peace-making efforts, it is clear that nobility of intention does not remove private diplomacy from the scope of the Logan Act’s prohibition.

*          *          *

On December 29, 2016, President Barack Obama imposed sanctions against Russia in retaliation for Russian interference with the 2016 U.S. presidential elections. Russian officials, including the foreign minister, responded almost immediately by promising reciprocal sanctions. But the next day, Russian President Vladimir Putin announced that there would be no retaliation; instead, he said, “we will proceed from the policy pursued by the administration” of incoming President Donald Trump.

In all probability, the FBI was already investigating the propriety of contacts between the Russian government and various Trump transition officials. In any event, the FBI quickly began to look into Putin’s unexpected, and historically anomalous, response to American diplomatic sanctions. One of the things the FBI looked into was communications with the Russian ambassador to the U.S., Sergei Kislyak – specifically, recordings made from wiretaps on Kislyak’s phones.

What the FBI found was that Trump’s national security advisor-designate, Michael Flynn, had a series of conversations with Kislyak right after Obama announced the Russia sanctions on December 29, including one in which Flynn asked that Russia not retaliate. Judging by Putin’s non-retaliation statement the next day, it appears that Flynn’s mission was successful.

Of course, Russia passing up sanctions against the U.S. is good for us. Still, as George Logan established for posterity, nobility of intention does not decriminalize private, unauthorized diplomacy. One can argue that Flynn’s actions were legitimate because the Trump administration was then just 22 days from taking office, but the fact remains that we have just one administration at a time, and, until just about noon on January 20, the one we had was not Trump’s. Flynn ran a risk, however small, that he didn’t then know all that the Obama administration knew about Russian intentions, and that his apparently benign interference might in some unexpected way produce bad consequences for the country.

No one has ever been prosecuted under the Logan Act, for a variety of reasons, and I would guess it’s unlikely that Flynn will be prosecuted under the Logan Act. But Flynn may have much bigger problems.

On January 12, the Washington Post reported that Flynn might have discussed sanctions with Kislyak; the next day, the Trump transition team responded with a flat denial. That Sunday, January 15, Vice President Mike Pence was asked about the issue on Face the Nation; his response was that, based on his conversation with Flynn, the Post report was not true.

These denials implied that Flynn had lied to administration officials about his conversations with Kislyak – which I would expect to be a capital offense in any White House. Worse, the FBI already knew that the denial was false, from the Kislyak wiretap. And if the FBI knew, then the Russians knew – and Flynn was at least potentially compromised by vulnerability to pressure or even blackmail by a Russian threat to expose Flynn’s lie. This raised the stakes from the possibility of wrongdoing by Flynn to the possibility of risk to the American national security.

On the Obama administration’s last full day in office, January 19, Acting Attorney General Sally Yates discussed the situation with James Clapper, the Director of National Intelligence; CIA Director John Brennan; and FBI Director James Comey. Yates, Clapper and Brennan wanted to inform the incoming Trump administration of the content of the Flynn-Kislyak discussions, and the compromise of Flynn’s position. But Comey was concerned that disclosure could impair the FBI’s investigation, so the Trump administration was apparently not informed.

On January 20, Clapper and Brennan left office along with Obama; Comey stayed on as FBI director and Yates remained as acting attorney general pending Jeff Sessions’s confirmation by the Senate – or, as it happened, pending Yates’s firing by Trump when she instructed Department of Justice attorneys not to defend Trump’s travel ban. On January 22, the Post reported that Flynn was under investigation, and on January 23, at his first press briefing, White House Press Secretary Sean Spicer repeated the previous denials that Flynn had discussed sanctions with Kislyak.

Spicer’s continued denial prompted Yates to go back to Comey, who this time agreed that the White House should be informed, and Yates did inform the White House counsel. We don’t know exactly when, but it had to be sometime between January 23 and January 30, when Yates was fired.

On February 8, the Washington Post interviewed Flynn for an article to be published the next day. Flynn repeated his denial that he had discussed sanctions with the Russian ambassador. But before the article ran, Flynn called the Post back to modify his denial: he could not be completely sure that sanctions didn’t come up. On February 13, Flynn resigned.

The New York Times is now reporting that Flynn was interviewed by the FBI about his conversations with Kislyak, and that the interview occurred “in the first days of the Trump administration.” I’m betting that “the first days of the Trump administration” was before February 8, the date of Flynn’s last known denial that he had discussed sanctions with the ambassador. And I’m further betting that Flynn gave the FBI a denial, too.

Logan Act prosecutions may not exist, but prosecutions for lying to the FBI most certainly do exist, and the offense is a felony.

Congressional Republican leaders have promised to investigate, and Democrats are pressing hard the old Watergate cover-up question, “What did the President know and when did he know it?” The answer, if we ever get it, will be illuminating.

Press reports raised red flags: the report on January 12 that Flynn might have talked sanctions with Kislyak; the report on January 22 that Flynn was under investigation. Certainly by January 30, the day that Yates left office, the White House knew for a fact that the National Security Advisor had been compromised. Spicer claims now that Trump was told at the end of January that Flynn had lied to Pence. I would hope that Trump was told within hours, if not minutes of Yates informing the White House counsel. Yet Flynn was allowed to remain in office until February 13.

At an absolute minimum, that delay reflected crisis-management incompetence, and the possibility of incompetence is hardly dispelled by the unprecedented chaos of this administration’s first weeks. And consider this as a display of incompetence: a career military man, a retired general who had served for two years as the director of the Defense Intelligence Agency and who was 22 days from taking office as the national security advisor to the president of the United States, either was not sophisticated enough to know, or at least suspect, that the American intelligence community might monitor phone calls to the Russian ambassador, or was not cautious or risk-averse enough to find another way to converse with the ambassador. Either way, it says a lot about the competence of the vetting done for Trump appointees, or not done, that Flynn was able to spend 24 days in the national security advisor’s office.

There are those who suspect worse than incompetence – the accusation is afloat that Trump only acted on Flynn because it became clear that his lies were going to become public, and that absent publicity the compromised Flynn would have kept his office.

The other remaining question is whether anyone in the administration, including President Trump himself, knew about Flynn’s conversations with Kislyak when they happened – or worse, in the case of the President, whether he instructed Flynn to have those conversations. If not, of course, then we are left with this: the Washington Post knew more, earlier, about Flynn’s actions than the President-Elect and then President, and his entire transition team and administration.

 *          *          *

Just in case you were wondering whatever happened to George Logan: after leaving the Pennsylvania legislature, he spent six years in the Senate, where he tried unsuccessfully to get the Logan Act repealed. Then in 1810, three years after leaving the Senate, he traveled to Britain in a private effort to head off the War of 1812. As you may have read, this time he was not successful. Still, he was not prosecuted for violating the Act he had inspired.


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