For nearly a year now I’ve been part of a tiny minority on RedState that believes the Russia probe is little more than lawfare waged by the Democrats and their allies to render illegitimate the administration of the guy who beat Hillary Clinton in 2016. The more I observe, the more I am convinced that to be the case. We’ve seen an investigation that was supposed to be focused on “collusion” with Russia during to campaign mutate to concern about “obstruction.” We’ve seen some indictments and guilty pleas brought in but none seem to have much to do with anything other than giving Mueller some scalps with which to festoon his wigwam (my apologies to Elizabeth Warren for the imagery that probably triggered her). As Andy McCarthy notes–a guy who has actually been a federal prosecutor–it is against DoJ policy to use a “lying to federal agents” indictment to “flip” someone on a larger crime. The policy is the guilty plea for a cooperating witness has to be to the most serious count of a potential indictment.
To show how un-serious the allegations are, over the weekend, and particularly today, we saw a panicked emphasis on the Logan Act as a real legal threat.
The Logan Act, you’ll recall, is a law passed in 1799 that reads in part:
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.
There have been possibly two indictments under the Logan Act and precisely zero prosecutions:
The one indictment found occurred in 1803 when a grand jury indicted Francis Flournoy, a Kentucky farmer, who wrote an article in the Frankfort Guardian of Freedom under the pen name of “A Western American.” Flournoy advocated in the article a separate Western nation allied to France. The United States Attorney for Kentucky, an Adams appointee and brother-in-law of Chief Justice Marshall, went no further than procuring the indictment of Flournoy, and the purchase of the Louisiana Territory later that year appeared to cause the separatism issue to become obsolete.
The case of Michael Flynn, according to progressive legal wizards, is different. It is the Silver Bullet that is going to bring down the whole Trumpian edifice.
President Trump’s former national security adviser, Michael Flynn, acknowledged in court last week that he lied to F.B.I. investigators about his communications with the Russian ambassador to the United States in the run-up to Mr. Trump’s inauguration. While Mr. Flynn pleaded guilty to only one count of making materially false statements, his admissions leave little doubt that he also violated a federal criminal statute known as the Logan Act. Mr. Flynn’s filings further reveal that a “very senior member” of the Trump transition team almost certainly violated the Logan Act, too.
We do not yet know the identity of this “very senior” official. Possibilities include Jared Kushner, who is Mr. Trump’s son-in-law; Mike Pence, vice president-elect at the time; and Mr. Trump himself. Whoever it was, Robert Mueller, the special counsel, can make out a powerful criminal case against that person.
The Logan Act makes it a crime for a United States citizen, “without authority” from the federal government, to communicate with foreign officials in order to “influence the measures or conduct of any foreign government” in a dispute with the United States or “to defeat the measures of the United States.” A conviction can result in a prison sentence of up to three years.
The statute, which has been on the books since the early days of the republic, reflects an important principle. The president is — as the Supreme Court has said time and again — “the sole organ of the nation in its external relations.” If private citizens could hold themselves out as representatives of the United States and work at cross-purposes with the president’s own diplomatic objectives, the president’s ability to conduct foreign relations would be severely hampered.
The statute applies squarely to Mr. Flynn. According to court filings, a “very senior member” of the Trump transition team told Mr. Flynn on or about Dec. 22, 2016, to contact officials from Russia and other foreign governments regarding a resolution pending before the United Nations Security Council that condemned Israeli settlement activity. Mr. Flynn then asked the Russian ambassador, Sergey I. Kislyak, to delay a vote on the resolution or use Russia’s veto to prevent it from passing.
All of this concluding with:
If Mr. Flynn violated the Logan Act, then so did the “very senior” official who directed his actions. If that official is Mr. Kushner, then Mr. Kushner could go to jail. If it is Mr. Pence or Mr. Trump, then impeachment proceedings could be in order. To be sure, the Republican-controlled Congress, not Mr. Mueller, decides who to impeach. But if the phrase “high crimes or misdemeanors” means anything, it includes violation of a serious criminal statute that bars citizens from undermining the foreign policy actions of the sitting president.
The operative phrase in this whole mishmash of misdirection and wish-casting is “sitting president.” The Logan Act is unconstitutional on its face and the only time it ever makes its way to the pages of the New York Times is when Republicans are working against the desires of a Democrat president. When Tom Cotton and 46 other GOP senators wrote a letter to the head mullah in Iran telling him that the agreement he was making was with Barack Obama, not America, he was called a traitor and accused of violating the Logan Act.
This, charitably, is pure masturbatory fantasy. It is material from the progressive spank bank.
Let’s start with the inconvenient fact that Michael Flynn was not a mere citizen. He was a federal employee (as of November 9, the Trump transition team was on the federal payroll). He was the national security adviser to the president-elect. Moreover, he acted with authority. The same set of facts applies to Jared Kushner. The only logical way you can go after Kushner is by saying that his instructions were counter to the desires of the president-elect. Does anyone think Trump is going to say Kushner was free-lancing as he tried to prevent a craven betrayal of Israel by Obama?
To be clear, it is very, very evident that to say this law, to the extent that it is even constitutional, could possibly apply to a presidential transition team is bizarre. If this were true, an incoming administration would be barred from talking to foreign governments about anything before Inauguration Day. No transition team is going to sit on its hands for three months and not discuss future policies with foreign diplomats.
Having said that, I would not be surprised to see Mueller issue indictments under the Logan Act because unless he produces some Russia-related indictments his investigation is going to be seen as a partisan witch hunt that cost a great deal of money, did a lot of political damage, and accomplished nothing related to the original charter. Then we’ll have to see how Justice reacts to that.