Legal Questions Swirl Around Flynn's Fall
President Donald Trump’s former National Security Advisor, Michael Flynn, resigned this week over his contacts with the Russian Ambassador to the United States and his deception of Vice President Mike Pence and others on the nature of those calls, but the case is clearly not closed, legal experts told The Cipher Brief.
As questions continue to swirl around the President’s team and its connections to Russia — the New York Times reported this week that during the campaign, aides and others associated with Trump had repeated contacts with Russian intelligence — the issue of how Flynn’s actions and subsequent discoveries will be approached in terms of laws on the books has come to the fore.
What would constitute criminal activity? How could Trump team members’ contacts with Russia be pursued in terms of ethics issues? How will the Intelligence Community and Congress approach and investigate Flynn, the Trump team, and the overall issue of Russian interference in the U.S. political process?
According to White House Press Secretary Sean Spicer, the legality of Flynn’s actions has already been examined.
“The first matter was whether there was a legal issue. We had to review whether there was a legal issue, which the White House counsel concluded there was not. As I stated in my comments, this was an act of trust,” Spicer told reporters on Tuesday.
Flynn led Pence, and others, to believe that he had not discussed U.S. sanctions against Russia with Russian Ambassador Sergey Kislyak during their late December conversations. The Obama Administration had just imposed sanctions in response to an Intelligence Community determination that Russia interfered with last year’s election by hacking political organizations in an effort to help the Trump campaign.
Trump says Flynn’s deception — not the content of the conversations — was the problem. What Flynn did “wasn’t wrong, what he did in terms of the information he saw,” Trump told reporters at Thursday’s press conference as he sought to draw attention instead to “the illegal giving out classified information.”
When asked if he had directed Flynn to discuss sanctions with the Russian ambassador, Trump replied, “No, I didn’t.”
“I fired him because of what he said to Mike Pence. Very simple. Mike [Flynn] was doing his job. He was calling countries and his counterparts. So, it certainly would have been OK with me if he did it. I would have directed him to do it if I thought he wasn't doing it,” he said. “I didn't direct him, but I would have directed him because that's his job.”
Checking the Logan Act
Flynn’s discussion of the U.S. sanctions with the Russian Ambassador has brought the little-used Logan Act into the spotlight. The 1789 law bars private citizens from trying to influence a foreign government “without authority of the United States.” No one has ever been prosecuted under it, although there is one known 1803 indictment. So, while discussing the sanctions during a transition could be seen as a violation of this obscure act, legal experts told The Cipher Brief it is highly unlikely he will be prosecuted under its terms.
“If people really think that Flynn or anyone else is going to be charged under the Logan Act — sorry, it’s not going to happen,” Bradley P. Moss, a national security lawyer, said.
Richard W. Painter, chief ethics counsel under President George W. Bush from 2005 to 2007, noted that the Logan Act is “difficult to enforce” and there would likely be questions of whether the act violates First Amendment freedom of speech protections.
Making false statements
However, the “good thing about the Logan Act is it gives you some room to ask questions about what people have been doing,” Painter, a professor at the University of Minnesota Law School, said. The government can certainly investigate violations of the Logan Act, he noted, and if a person lies, “it’s criminal prosecution for false statements.”
Moss agreed, saying “the only way Flynn is in criminal trouble is if he lied to the FBI,” which is a federal crime.
According The Washington Post, Flynn told FBI agents in the early days of the Trump administration that he did not talk about sanctions with the Russian Ambassador. Intercepted communications say otherwise, the newspaper reported.
“You can’t lie to the Feds. That’s the only way he could be in true criminal trouble,” Moss said.
The security clearance issue
While the White House has sought to place Flynn’s departure in terms of “trust,” there is another issue at play. This was a security risk, Moss said. When the Justice Department told the White House that Flynn had misled Pence and others about what he discussed on the calls, the officials also warned that he was potentially susceptible to Russian blackmail.
Moss, who deals frequently with security clearance cases, said it was “very, very surprising” that the White House did nothing about Flynn’s clearance in the wake of this. Typically, someone with a clearance found to have a foreign connection that raises foreign blackmail or exploitation risk has their access suspended.
“They knew about this for three weeks, that he was potentially compromised,” Moss said. “He was in every sensitive meeting. He was giving the daily brief. Normally, if it was a rank-and-file person and you’re found to be vulnerable to foreign blackmail or coercion, your badge is taken, you get a letter saying you’re suspended, and you’re shoved out the door until an investigation has finished.”
“What is virtually never done is what happened here, where the person continues to work with highly classified information and no action was taken,” Moss added.
The Defense Intelligence Agency has suspended Flynn’s access to classified information, The Wall Street Journal reported on Wednesday. “This is a standard administrative action taken when questions arise concerning an individual’s compliance with security directives,” a spokesperson for the agency, which Flynn once headed, said.
Looking beyond Flynn
Meanwhile, more investigations will unfold — and this will go far beyond Flynn’s actions. The FBI will evaluate this from a criminal and national security context to see if any laws were broken by the various members of the Trump team in light of whether they improperly interacted with Russian officials, Moss noted.
Part of it will be looking to see if there was a quid pro quo, which would be “very significant and damaging,” Moss said. “But I don’t think there will be the smoking gun people are looking for.”
“It would really have to be some kind of obvious quid pro quo, otherwise this is more about ethics and politics rather than legality,” Moss said.
From the House to the Senate to the Intelligence Community, this “merits thorough investigation,” Painter said.
“Everyone needs to tell the truth, and once we figure out what happened, we can figure out if anyone committed crimes,” he said. “The Russians engaged in illegal computer hacking, so obviously, if there was any cooperation in that from any individuals, then that’s analogous to the people who got involved in the Nixon campaign with the Watergate break-in.”
If anyone participated, conspired or encouraged the Russian hacking, Painter said, “you wouldn’t need a quid pro quo to prosecute someone for conspiracy to commit a break-in like that.” If those links emerge, someone could be charged with conspiracy or as an accessory after or before the fact, for instance, Painter said.
Congress, meanwhile, can investigate beyond the specific legal aspects. “Purely from an ethical and security standpoint, what were these Trump team members doing?” Moss asked.
Several congressional committees are looking at Russian interference in the U.S. election already, most notably the House and Senate Intelligence Committees. While there needs to be intelligence-focused inquiries, there must also be inquiries focused more on misconduct led by the Judiciary and oversight committees, Painter said.
“Right now we have a national security issue because the Russians have been engaging in this type of conduct. We need to get to the bottom of this right away because it’s a foreign power trying to destabilize our country,” Painter said.
Mackenzie Weinger is a national security reporter at The Cipher Brief. Follow her on Twitter @mweinger.