Russia Probe

The Logan Act Doesn't Justify Mike Flynn's Prosecution—It Further Politicizes It

If you’re invoking an obscure law designed for the purpose of punishing political adversaries, don’t be surprised when it backfires.

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Some people invested in justifying the investigation and prosecution of Mike Flynn, former national security adviser to President Donald Trump, are pointing to the archaic, terrible Logan Act to justify Flynn's treatment.

In The New York Times' opinion section today, Norman Eisen (who served as House Democrats' counsel during the impeachment of Trump), argues that internal documents released Wednesday detailing how the FBI approached Flynn's interviews show that the investigation was legitimate. Eisen believes Trump's defense of Flynn "signals that the president will escalate his abuses of power in the run-up to the 2020 election."

Here's where the Logan Act comes in:

The Michael Flynn scandal was one of the first to reveal the pattern of lawlessness that has characterized the Trump administration. In December 2016, Mr. Flynn, in a phone call, successfully implored Russia to moderate retaliation against the United States for sanctions imposed because of the attack on U.S. elections. The conduct raised serious questions under the Logan Act, which prohibits private parties from conducting U.S. foreign policy.

Eisen probably doesn't realize it (and he certainly wouldn't acknowledge it), but his invocation of the Logan Act here actually bolsters the argument that Flynn's prosecution had at least some political motivations.

The Logan Act is a terrible law, and it has never been invoked for a good reason. It was passed in 1799, during a small undeclared naval war, when a Philadelphia Quaker named George Logan attempted to independently negotiate peace between the United States and France. His efforts undermined the political goals of the ruling Federalist Party, and so the law was enacted as a tool to punish anyone else who attempted to follow in Logan's footsteps.

All which is to say: The very purpose of the Logan Act is to punish political speech that runs counter to the sitting president's foreign policy goals. Every invocation of the law has been to threaten somebody from an opposing political party for getting involved in foreign policy in a way that displeases whoever has control of the White House. The fact that nobody has actually ever been prosecuted for violating the Logan Act—which would create an opportunity to challenge whether the law itself violates the First Amendment—should be seen as a big red flag whenever it's mentioned.

The documents released this week do indeed show that FBI officials considered recommending to the Justice Department that Flynn be charged with Logan Act violations. This possibility was discussed in the media back in 2017, when Flynn pleaded guilty to lying about his connections and conversations with Russian ambassador Sergey Kislyak. I blasted the idea at the time, and I haven't changed my mind.

One more thing. This conversation between Kislyak and Flynn, where Flynn encouraged Russia not to react harshly to new sanctions from the United States, took place in late December 2016, after Trump won the presidential election and just weeks before he'd take office. Flynn was part of Trump's transition team and was representing the incoming administration. (Well, sort of: The administration itself apparently didn't know about these conversations, and that contributed to Flynn's downfall in February 2017.)

So even in the context of the Logan Act's stated purpose, it doesn't make sense to apply it to Flynn. Remember: The intent was to prevent outsiders from undermining the president's foreign policy goals. It's absurd to use it against an incoming official who merely pointed out that one of the lame duck president's policies isn't likely to stay in place.

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  1. I agree with Shackford. Russia-gate was a coup attempt.

    1. So is every-other-thing-gate since the election.

    2. FACT: Russia hacked out election with weaponized memes, false Facebook advertisements, and tactical fake new. Trump’s pullout of the Syria conflict just proves that there is active Russian collusion at the tops levels of our government. The only loyalty a politician should have is to the American constitution and the state of Israel.

      1. Weaponized MEMES!

        *faints dead away*

      2. Ending an undeclared war started by his predecessor should be the goal of anyone sworn to protect the Constitution. I mean under that logic, Eisenhower and Nixon were also Russian stooges since they ended wars that were started by their predecessors and ultimately benefitted the Russians as a consequence. And the whole stupidity of the meme and fake news argument is simply astounding. The fact that you continue to push it just shows how little you think of your fellow Americans and a total lack of logic on your part.

  2. //So even in the context of the Logan Act’s stated purpose, it doesn’t make sense to apply it to Flynn. Remember: The intent was to prevent outsiders from undermining the president’s foreign policy goals. It’s absurd to use it against an incoming official who merely pointed out that one of the lame duck president’s policies isn’t likely to stay in place.//

    Correct.

    When can we expect Amash to speak out against this?

    1. Would the Logan Act even survive a Supreme Court challenge?

      1. No, and it would like never make it past a District Court, either. Desuetude alone should be enough to laugh the farce out of existence.

      2. Freedom of speech and freedom of association… Now, if it had been a declared war against a declared enemy and the relationship actually was meant to aid the enemy while causing harm to the US, then it would be covered by treason and sedition. Since the writers didn’t go that route seems to mean that they realized how dicey the law was. But then again that never stopped Adams or his puppet master’s (most notably the lefts favorite authoritarian, Hamilton).

  3. In a society that still had its balls, Comey and McCabe would have been in prison for this shit the minute this all came out.

    1. In a society that respects democracy, Hillary would be President.

      1. “A republic, if you can keep it.”

      2. Funny because neither Bill, nor Hillary, nor Black Jesus respected democracy. They paid lip service to the forms, but violated civil rights at will and attacked other countries without provocation.

        #StillButtHurtAfterAllTheseYears

        1. Serbia was totally asking for it. That short skirt and hooker boots made us do it.

      3. WE don’t have a democracy dipshit. We have a representative Republic In a society that taught civics, dumb asses like you would know better than to say things like what you just said.

        1. Angry John is not so bright. The guy clearly typed “if we had…that respecs” and you come right along and prove the point.

        2. We realise that you and a long line of assholes like you don’t like democracy.

          1. Correct we don’t like democracy, but we love a constitutional, representative republic. If you understand the difference you wouldn’t think telling us that we don’t like democracy as if it was an insult.

            1. The founders and framers used both terms interchangeably. Any true originalist would respect that. Only living constitutionalists quibble over such distinction without a difference.

              1. No, they didn’t. If you read their papers most were opposed to true democracy and insisted on it being a federal republic. It is not just semantics. They purposely limited the power to turn the country into a true democracy.

                1. They read the classics, and wisely picked the Roman model over the Athenian idiocy described in Thucydides

              2. Democracy was a pejorative at the time the nation was founded. The founders were students of history and understood that mob rule turns to shit. This country has been in existence for over two hundred years precisely because it is a republic, not a democracy. The closer we get to direct democracy, the closer we get to the end of the American Experiment.

        3. We have a democracy AND a republic, and the founders and framers were quite clear on that.

          Quibbling about such pedantic flummery in lieu of any substantive discussion just shows you have nothing better to contribute.

          1. It isn’t a democracy. It is a representative republic. That is not being pedantic. And the framers purposely set up the Constitution to keep us from becoming a true democracy. In fact a number of the framers were dead set against a true democrat. And well some may have used the word democracy, it doesn’t change the fact that we have never been a democracy and have always been a representative, federal republic. Or before the Constitution, a confederation.

            1. The founder and framers used both terms interchangeably. Who are you to tell them they were wrong?

              1. We’re not saying they were wrong. We’re saying you are wrong.

              2. And you are wrong that the framers used the terms interchangeably. Some did others completely rejected the term democracy.

                1. It should also be noted that some of those that used the word democracy also ended up being some of the most authoritarian.

                  1. If a country has ‘democratic’ or ‘people’ in their official name, they’re likely authoritarian assholes. If they have both, good lord.

                  2. As folks are wont to say… “Democracy is two wolves and a sheep voting on what to have for dinner”

          2. Its a flour polish and a desert topping.

      4. I’m going to go a bit out on a limb and speculate that RabbiHarveyWeinstein is another parody account.

        I could click on his name and tell for sure, but I hesitate to do that.

        1. It’s the Anti-Defamation League home page.

          But I notice that the poster said above “The only loyalty a politician should have is to the American constitution and the state of Israel.”

      5. Good thing we live in a country that respects constitutional, representative republic and federalism.

      6. In a society that respects democracy, we wouldn’t have a two-party system.

  4. Ah, 1799. A bygone era where if a law was named after you, it’s because the government wanted you specifically to be fucked.

    Now it’s because they want you to feel good about helping a particular person while everyone is fucked.

    1. By 1799, the mainline Quakers had disowned him for serving in the militia. Wikipedia says nothing of him joining another Quaker sect, so maybe he wasn’t a “Philadelphia Quaker” at the time of his mission.

      1. Eh, so he was Quaker-adjacent.

      2. Nixon was a Quaker, I believe. Always puzzled me, but not enough to investigate.

        1. Greene was a Quaker but also one of our best field generals during the Revolution.

          1. Greene was part of the “Fighting Quaker” group which separated from the other Quakers over the issue of…fighting.

            Before Nixon’s time, pacifism had become optional for pretty much all the Quaker groups. That is, there were still plenty of Quaker pacifists, but if you joined the army you wouldn’t be kicked out of your Meeting. I think the Civil War was the great turning point…so many fighting Quakers (and in such a good cause, as they saw it) that they eventually stopped disciplining members who became soldiers.

            Incidentally, A. Mitchell Palmer was also a Quaker, and so was Hoover (Herbert, not J. Edgar).

            1. For an account (though not exactly an unbiased account) of Nixon’s Quakerism, there’s this book:

              https://amzn.to/3d1gzWa

            2. Greene was a very interesting character. He rarely won any battles but he never truly lost any either. His southern campaign bled Cornwallis (who despite popular media portrayals was a young man and the most capable British General, also one who respected Americans far more than Hollywood makes out) dry and forced him to abandon the Carolinas, withdrawing to Virginia, where another young general was able to pin him on the Virginia peninsula, leading to Yorktown. Washington’s biggest strength as a General (and also one of his biggest weaknesses) was his ability to pick competent subordinates. Greene, Knox, Lafayette, all young and the first two had no real military experience or training. But all three proved to be indispensable.

              1. Update: Greene’s Quaker group was called the Free Quakers, not the Fighting Quakers.

  5. Flynn was an obstacle to the furtherance of the Russia hoax that’s why they went after him. It’s interesting that Obama told Trump to get rid of Flynn. To me this implies he knew about the Russia hoax and was actively participating in it.

    1. Have you observed Comey at all? That guy covers his ass for breakfast.

      There is absolutely zero chance that they were investigating a presidential candidate, including spies and wire taps, without getting authorization from the very top. In writing.

      I’d bet my house that Comey has something in writing somewhere that covers his ass on this.

      I’m fairly sure everyone playing at that level is in a similar boat. They live in a cutthroat political world. Nobody is going out on a limb as shaky as spying on a presidential candidate on their own nickel.

  6. Eisen believes Trump’s defense of Flynn “signals that the president will escalate his abuses of power in the run-up to the 2020 election.”

    Hmm. Doe Eisen believe anything signals that the president will NOT escalate his abuses of power in the run-up to the 2020 election?

  7. It must really suck for half the commentariot this last week. Millions not dead. The IC abuses charging into the open. But at least they have dreamboat Amash. Shit, he said some good things about Trump earlier. God. Just a no good shitty week for some.

    1. The Biden sexual assault scandal reaching enough critical mass that the media and Biden can no longer ignore it. And his weak defense left much to be desired this morning.

    2. Funny how you rate a libertarian on how much Trump cock they suck.

      1. Amazing how you come in here to what should be a simple matter for libertarians and only respond to people pointing out how bad this was done. I don’t see you responding or attacking the leftist trying to defend this stupid law.

        1. Leftists (other than OBL) aren’t pretending to be libertarians. I also don’t come after vegetarians pretending that turkey poo makes good burgers.

          For that matter, if you think a balance is needed, what makes me so special? Why not pick on John, JesseAz, Nardz, and even yourself for being so unbalanced? I suppose I should be flattered that all you Trumpistas think I am such a threat that you all have to pile on and high five each other.

          1. They think that everyone who criticizes Trump is the same person. I am you, you are me, we get paid by Reason, and we never eat, shit or sleep.

            1. When have I ever said that or even implied it? I have always engaged you as an individual. But you seem perfectly willing to lump anyone who dares to defend Trump into the same boat. Don’t you realize your post is the epitome of pot calling the kettle black?

              1. I was referring to Nardz, JesseAZ, and the other asshats when I said “They.” Sorry, didn’t mean to offend.

                1. Didn’t offend I just found to ironic that while you were making a comment about others generalizating, you ended up generalizating yourself.

                2. Thats a tulpa, Jesse, and lc meme, sarc, not others.
                  Thus is (one of the areas) where you fuck up – you bitch about over generalization while doing it in the same sentence.
                  Work on your memory if you’re going to try to make specific references.
                  And no, alphabet soup, we don’t think you’re a threat – we think you’re stupid and emotionally idiotic

          2. No, the fact that you use the term Trumpista to label me shows how unhinged and unbalanced you are. I have criticized Trump and defended him when it was appropriate. I have not, nor has Jesse or John to my knowledge, ever claimed to be a libertarian. I have stated I am a constitutional conservative with libertarian leanings. But that is nowhere near claiming to be a libertarian. In fact I am pretty certain that Jesse and John both have told you they also are not libertarians but do have libertarian leanings. So your defense completely false flat. Again, maybe you need to do some self reflection as to why you act they way you do? Why you criticize one group above another. It seems that I agree with you far more often then Axeblood or Rabbit. And so do Jesse and John. So ask yourself why you feel the need criticize Jesse and John so harshly (especially as nothing Jesse posted above is not arguably correct) but seem more reluctant to criticize Axebloods idiocy above. If you compared ideology, you would find far more in common with Jesse then Axeblood.

      2. Can you explain why you feel the need to call out Jesse but not the authoritarian idolizer Axeblood? Why do you attempt to (unsuccessfully) correct a factual statement that I made but not the stupidity that Rabbit made? Maybe it is time for some self reflection on your part.

        1. He’s both doctrinaire and resentful

          1. Which basically means the only way he knows to express himself is by bitching at those that don’t join his circle jerk

            1. Yep, because anyone who calls out a Trump cheerleader for being a Trump cheerleader is being a bitchy-ass bitch who hates Trump and works for Reason. You nailed it.

              1. No, when that is all they do, or the majority of what they do…

          2. Pile on, Brother, pile on!

    3. I’m only mostly dead.

  8. nothing justifies that bullshit. this isn’t East Germany.

  9. I think the argument in the last two paragraphs is fairly reasonable; namely that maybe this isn’t a good case to apply the Logan Act.

    But the rest of the article painting communication and negotiation with foreign governments as equivalent to political speech seems wrong to me. Publicly advocating “we should not sanction Russia” is much different from As I understand, foreign intervention in internal power struggles was quite common throughout history, and I think that’s what this law seeks to prevent. How would conservatives feel if a Biden campaign official secretly communicated with Iran, encouraging brinkmanship to hurt Trump’s reelection, ? What if Biden negotiates some trade deal with another country, and that country then refused to work with Trump?

    I don’t know, I’m a pretty strong free-speech absolutist, but somehow I view “making private deals with another government on behalf of the U.S. is wrong” as related to conduct and not speech, and it seems pretty easy to draw a clear line between advocating for a particular foreign policy approach and politicians privately negotiating with foreign countries. Perhaps where the Logan Act goes wrong is that it doesn’t draw this clear line by not specifying exactly what type of communication is prohibited.

    And calling this “obscure” or “archaic” doesn’t make sense to me; usually obscure laws aren’t named, and “archaic” law have unclear or outdated purposes, which I don’t think applies here.

    1. As long as they are not a declared enemy during a declared war, freedom of speech and association do apply. And the fact that it has never been used to charge anyone means it is pretty obscure and archaic to me. If you think about it any of the Irish who communicated with the IRA during The Troubles could be charged. Anyone who communicated with the PLO or negotiated for release of kidnap victims from Narco Terrorist could also be charged. Hell, anyone who negotiated a contract with an ally, say Boeing negotiating the sale of planes to the state carrier of Germany or France, would be guilty.

      1. Yeah, maybe you bring up an interesting point; I can’t seem to draw a reasonable line to determine what isn’t speech, so maybe you’re right. Reading about the history of the Logan Act more, it seems like most of the times it has been brought up, it’s been abused. But I’d think the Supreme Court would disagree that free speech includes this after Holder v. Humanitarian Law Project (which I think was wrongly decided FWIW).

        1. The purpose of the Logan act was to prevent a private citizen from sailing to Zanzibar and acting like the ambassador. So even if you think it’s Constitutional, the incoming NSA talking to a diplomat is the complete opposite of it’s intended target.

    2. Please tell me how someone who is not an administration official can possibly negotiate foreign policy. Any foreign government which believes that a non-official has any official negotiating power is naive beyond belief.

      1. Observation about the left: every single one acts like history started sometime between the 30’s and 60’s.

    3. Then there’s always the black letter law of the constitution.

      “Congress shall make no law….”

      That’s about as absolute as it gets. And speech advocating for or against a war is also pretty clearly political speech, which is the most clearly protected type of speech addressed by the first amendment, what with that being the entire point of the exercise.

  10. Steyn has a good writeup on it today. Recommend reading it and understanding that Flynn got the treatment most of us would get on a daily basis from the cops, prosecutors, state and local government pukes, and the feds.

    Maybe Trump will pardon him. But for once it would be nice for the guilty parties in the DOJ and FBI to stand trial.

    1. it would be nice for the guilty parties in the DOJ and FBI to stand trial.

      Why doesn’t Barr go after them?

      1. I don’t know, but if I had to guess I’d speculate that he’d face a revolt in the DOJ/FBI bureaucracy.

      2. Barr, like Mueller before him is a government guy. He believes in the department. He believes in the process, paperwork, and pretexts.

        They all do.

        That’s why the IG report looks like it does, examining things only from inside the bubble of “did they have an articulable reason for X”.

        Any rational person looking into this investigation would start with the initial pretext. “We have intelligence that suggests that Russia is attempting to infiltrate the Trump campaign.”

        That was the start of the whole thing.

        So they assign a counter-intelligence group. So far, so good.

        That group immediately begins spying on a CIA asset who is working with them to prosecute some Russian dudes.

        That should have been the IG’s jumping off point. Why the hell would you start wire-tapping an attempting to entrap your own guy?

        Second… nobody talked to the candidate or anyone in the campaign. If you were really running a counter-intelligence operation with the intention of preventing infiltration by Russian agents, you would definitely want to work closely with the campaign to help them block such attempts. If you suspected Carter Page, you’d certainly want to let someone inside the campaign know that he might be compromised.

        But not only did they not follow that lead… apparently nobody even asked that question. Not within the purview of the investigation. Can’t second guess stuff like that. Only “did they have an articulable pretext for their actions”.

        You don’t need to do any deep dive to know that this entire thing was a sham. You don’t even need to know that the “intelligence” wasn’t some secret tapes of Kremlin officials discussing their contacts with Trump, as was intimated to the press at the time. You don’t even need to know that the “intelligence” was actually from DNC operatives, nor do you need to know that the CIA and FBI knew this as they started their investigation.

        No, simply taking their statements at face value – that they were operating a counter-intelligence investigation designed to protect the Trump campaign from infiltration by the Russians – you have everything needed to know that they were not honest actors in this story.

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