Michael Flynn lied. Not once, but
He lied to Vice President Mike Pence about his conversations with
Russia. For that, he was fired by President Trump as national security
Flynn also lied to the FBI about the same subject. For that, he was
charged and pleaded guilty in federal court Friday to a single count of
making false statements.
As part of his plea, Flynn agreed to cooperate with Special Counsel
Robert Mueller’s investigation. This inexorably invites two questions:
Will Flynn implicate anyone else in the Trump administration, including
the president? And if so, for what crime?
There is nothing in Flynn’s plea agreement or “Statement of the Offense”
that implicates President Trump in these conversations with Russia
during the transition.
Some insight is offered in the “Statement of the Offense” that Flynn
signed on Friday during his guilty plea. In the statement, Flynn
identifies two separate conversations he had with Sergey Kislyak,
Russia’s ambassador to the United States.
According to the statement, one conversation involved Russia’s reaction
to a United Nations resolution on Israeli settlements. The other, a week
later, dealt with Russia’s response to President Obama’s executive order
on Russian sanctions. Each time, one or more “senior officials” on the
Trump transition team conferred with Flynn on what information to
The only conceivable crime these communications with Russia could
constitute falls under the Logan Act. But that antiquated law has no
application for several reasons.
First, the Logan Act was enacted in 1799. It makes it a felony for a
private citizen to interfere in international disputes between the U.S.
and foreign governments. But no one has ever been prosecuted under the
act, principally because most lawyers, legal scholars and judges agree
that it is likely unconstitutional.
Since no one has ever been convicted of violating the Logan Act, no
court has ever ruled on its constitutionality directly.
However, courts have commented on the Logan Act from time to time. In
1964, the U.S. District Court for the Southern District of New York
(Waldron v. British Petroleum Co., 231 F. Supp. 72) stated that the act
was likely unconstitutional because it is vague, overly broad and
Numerous scholarly publications have argued that the Logan Act also
violates the right to free speech under the First Amendment. So its
legal efficacy is doubtful.
Second, Flynn was not acting as a private citizen, as the law defines
it. He was serving in a wholly different capacity – as a government
representative of a president about to assume office.
Flynn was preparing the incoming administration for the foreign policy
challenges that lay ahead and establishing the kind of vital contact
that assists a new president in formulating effective relationships and
policies. In other words, Flynn was doing his job. He did it in the same
manner that other transition officials have in previous administrations.
Several months ago I spoke with Professor W. David Clinton, chairman of
the Political Science Department at Baylor University, who co-authored
the seminal book “Presidential Transitions and American Foreign Policy.”
Clinton stated that it is quite normal and routine for incoming
transition teams to have lengthy and detailed conversations with foreign
government officials about forthcoming changes in policies. Indeed,
Clinton said it would be abnormal if this did not happen.
“It is common for representatives of other governments to get in touch
with the incoming presidential administration to begin informal
relationships and address relevant issues,” Clinton said. “It is not
unusual. Transitions are fairly long. The incoming administration needs
to inform itself of foreign policy. Getting to know people and foreign
governments is widely done and beneficial to the U.S.”
Finally, it appears that Flynn and the transition team did not
“interfere” with a diplomatic dispute, under the meaning of the Logan
Act. To the contrary, Flynn sought ways to de-escalate tensions over
U.S. sanctions by asking the Russian government to limit its response
“in a reciprocal manner.”
By doing this, Flynn was acting for the benefit of the U.S. government
and in a manner not inconsistent with the Obama administration’s wishes
and policy. He can hardly be criticized for it, much less prosecuted.
On the other matter, Flynn admits he urged Russia to either delay or
veto a United Nations resolution that condemned Israel’s settlements as
a “flagrant violation” of international law. This surely came as no
surprise to the Russians or the Obama administration, since it conformed
with the same public statement President-elect Trump issued that very
Flynn contacted the Russians about the pending vote. Trump tweeted: “The
resolution being considered at the United Nations Security Council
regarding Israel should be vetoed.”
Thus, there was nothing secret, nefarious or illegal about Flynn’s
communications with Moscow. And in the end, it didn’t matter. Russia
ignored Flynn’s request and voted in favor of the resolution, which
passed with 14 votes.
Officially, the U.S. took no position on the resolution. By abstaining,
it neither supported the resolution nor opposed it. And since the
measure imposed no sanctions, it was nothing more than an idle
Even if Trump reached out to the Russians in an effort to find common
ways to fight the scourge of ISIS in Syria, as ABC is reporting, such
actions are entirely commensurate with longstanding U.S. goals in the
war on terrorism and in no way impede the policy of the man he was
chosen to succeed.
Are these, therefore, violations of the Logan Act? Absolutely not.
An incoming president has every right to voice his position on matters
of foreign policy. There is no evidence that Flynn’s actions interfered
with anything that wasn’t already in the interests of the United States
or otherwise altered the course of a diplomatic dispute. This is
probably why Flynn was not charged under the Logan Act.
The U.S. has never criminalized the conduct of foreign policy by
incoming presidents. Others have sought to change overseas policy before
taking office, sometimes quite openly. Significantly, there is nothing
in Flynn’s plea agreement or “Statement of the Offense” that implicates
President Trump in these conversations with Russia during the
Nor is there any accusation or evidence that Trump or others conspired
with Moscow to influence the presidential election during the campaign.
This is supposed to be what Special Counsel Mueller is investigating.
Yet, he has uncovered only ancillary wrongdoing that is entirely
unrelated to so-called “collusion.”
Flynn’s guilty plea to a single count of making false statements is the
least serious of any the offenses he could have faced. It is likely he
will be given probation.
Still, it is inexplicable why a distinguished retired general like
Michael Flynn would lie to the FBI about something that is not, by
itself, a crime. Sometimes, smart people make stupid choices.
But it would be a mistake to conclude that Flynn’s commitment to
cooperate with the special counsel means that President Trump is in
legal jeopardy. The president is certainly not under the Logan Act.
Gregg Jarrett joined FOX News Channel (FNC) in 2002 and is based in New
York. He currently serves as legal analyst and offers commentary across
both FNC and FOX Business Network (FBN).