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What now of Michael Flynn?

President Donald Trump’s national security advisor, Michael Flynn, recently resigned from his post last month. Flynn’s early departure was closely connected with his private sanctions discussions with Russian Ambassador Sergey Kislyak. Shortly after President Obama retaliated against Moscow for interfering in the recent election, Flynn reportedly reached out to Kislyak to reassure him that the incoming administration would lift the penalties. Many campus political groups have expressed concern about these revelations. Politics, however, is not the half of it. Flynn arguably violated two federal statutes during his rendezvous with the Kremlin’s consul, the Logan Act and a separate statute criminalizing lying to federal officials about matters related to that official’s job.

The Logan Act was passed to prevent private citizens from interfering with diplomatic negotiations between the federal government and foreign nations. Michael Flynn violated this criminal statute if 1) he communicated with a foreign government, 2) his communication was intended to influence the foreign nation’s actions and 3) he was not authorized by the President or his subordinates to negotiate on the United States’ behalf.

FBI reports corroborate that Flynn did speak with Ambassador Kislyak, a forgiven diplomat. Moreover, immediately after the Flynn-Kislyak talks concluded, President Trump took to Twitter to praise Vladimir Putin for his decision to forgo retaliatory sanctions against the United States. It can be rather difficult to ascertain an individual’s intent. The suspicious timing of Flynn’s intervention, however, in tandem with President Trump’s rapid response highly suggests that Flynn wanted to influence Russia’s response to the Obama penalties. Finally, Flynn was not authorized to conduct diplomatic negotiations as an American representative because President Trump had not yet assumed the duties of the Oval Office.

So has Flynn purchased a one-way ticket up the river? Not quite. One way the president can exercise her duty “to faithfully execute the laws” is by declining to enforce certain criminal statutes. The current administration clearly recognizes that prosecuting Flynn would be the equivalent of courting a self-inflicted public relations wound. The government, moreover, has never secured a Logan Act conviction in the statute’s two hundred and eighteen-year history. Some commentators have also suggested that the law is unconstitutional because it prohibits citizens from speaking on certain issues and is worded vaguely. The short of the matter is that the statute may violate our governing charter, has never been enforced, and Mr. Trump, in any event, has a positive disincentive to not enforce it.  

Don’t throw in your towel just yet, though. Flynn also violated 18 U.S.C. §1001, a federal criminal law that prohibits one from lying to a federal official about a subject within that official’s duties. Flynn tried to conceal his involvement in the sanctions talks from Trump’s closest colleagues. Indeed, he allegedly told Vice President Pence that he did not discuss U.S. sanctions with Ambassador Kislyak, which led Mr. Pence to unknowingly parrot this fib on several Sunday morning talk shows. 18 U.S.C. § 1001, unlike the Logan Act, has been actively enforced against high level officials in the recent past — even when the offending public servant served in the same administration pressing charges against her. Vice Chairman of the Joint Chiefs of Staff James Cartwright was charged with violating that statute after he lied to the FBI about his role in leaking classified documents to the press. One wonders, though, whether Trump’s Justice Department will devote scarce time and resources to uphold the rule of law — especially when that goal conflicts with political expediency. If the past is the best future indicator, perhaps we ought not hold our breath.

-Habib Olapade ’17

 

Contact Habib Olapade at holapade ‘at’ stanford.edu.

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