Could anything have made the Obama administration giddier than the prospect of making a criminal case on Michael Flynn?
Flynn is a retired Army lieutenant general, who made his mark on modern insurgent warfare by helping revolutionize the rapid dissemination of battlefield intelligence. He was promoted by President Obama to lead the Defense Intelligence Agency. He is also a headstrong man who got himself on Obama’s bad side by questioning counterterrorism strategy, particularly the administration’s weakness on Iran. He was detested by Obama political and national-security officials for calling them out on politicizing intelligence. The FBI was not a fan, least of all Deputy Director Andy McCabe, because Flynn had supported an agent who claimed the Bureau had subjected her to sex discrimination.
After Obama fired him from the DIA post, Flynn became an important Trump-campaign surrogate, which gave him a national media platform from which to rip Obama’s foreign policy. When Trump won the election, Obama counseled him against tapping Flynn for a top administration job. Trump ignored the advice, naming Flynn his national-security advisor. Flynn worked on the Trump transition and incensed Obama officials by lobbying against a U.N. resolution against Israel that the Obama administration, in its profiles-in-courage style, orchestrated and then abstained from voting on. The collusion narrative notwithstanding, Russia rebuffed Trump’s entreaties on the Israel resolution.
Obama’s late-December imposition of sanctions on Russia got the attention of Sergey Kislyak, the Kremlin’s ambassador to the United States, just as the administration figured it would. Kislyak, who has a wide, bipartisan circle of Washington contacts, contacted Flynn, who, as a member of Trump’s transition team, was dealing with a variety of foreign counterparts.
The next day, December 29, Flynn called the president-elect’s Mar-a-Lago resort in Palm Beach, where senior transition officials were cobbling together a new administration for the candidate no one had expected to win. Flynn and his colleagues discussed the Russia sanctions and their potential effect on Trump’s foreign policy. Flynn was advised to convey the message to Kislyak that Russia should resist any urge to escalate the situation. Immediately afterwards, Flynn called Kislyak. The topic of sanctions was discussed, but not a deal on sanctions. Rather, Flynn simply urged that Russia limit itself to no more than a reciprocal response, rather than escalate matters. This, obviously, is what we should hope any responsible American official, regardless of party, would propose.
As Flynn should surely have known, Kislyak, an overt agent of Russia, was subject to FISA monitoring. The FBI counterintelligence agents were not only eavesdropping on Kislyak’s discussion with Flynn; they were doing so in consultation with “Obama advisers,” as The New York Times gently described them. The Times elaborated:
Obama officials asked the FBI if a quid pro quo had been discussed on the call, and the answer came back no, according to one of the officials, who like others asked not to be named discussing delicate communications. The topic of sanctions came up, they were told, but there was no deal.
Asked not to be named discussing delicate communications. That’s a good one. Let me translate. The officials did not want to identify themselves because they were committing a felony: FISA intercepts are classified, and disclosing them to unauthorized people, including the media, is a serious crime.
Two things, in any event, should be observed. First, the Flynn investigation was a vindictive farce: Even if there had been a substantive discussion of sanctions, there would have been no law violation. But there was no such discussion, just the mere mention of sanctions, prompting Flynn’s proper response: Don’t escalate. Second, the Flynn–Kislyak communication became the grist for an outrageous classified leak for which, to this day, no one has ever been prosecuted.
Eventually, the FBI and the Justice Department were forced to disclose portions of the House Intelligence Committee Report that they had initially redacted. We thus learned that, for some period of time during 2016, the FBI was conducting a counterintelligence investigation of General Flynn. There are still relevant redactions, so the basis for this investigation remains unclear. It apparently took place during the campaign, but it seems unlikely that it could have been related to Moscow’s cyberespionage activity.
Did the FBI open an investigation on suspicion that the decorated 33-year combat veteran of the U.S. Army was an agent of Russia engaged in clandestine activity against the United States? It’s possible, though that would be hard to believe. Whatever the basis for investigating Flynn, Director Comey recalled having “authorized the closure” of that investigation “by late December 2016.” It is unclear, however, whether the investigation was actually closed.
In the meantime, the Obama administration took the position that Flynn’s conversation with Kislyak could be a criminal offense. This was absurd. There was no illegality in Flynn’s communications with officials of foreign governments. Of course, Trump was not yet president and there was post-election fervor over Russia, so if Flynn had engaged in negotiations with Kislyak, it would have been politically boneheaded. But not illegal. President Trump eventually dismissed Flynn as national-security adviser on February 13, 2017 (after only three weeks on the job), and Flynn was later prosecuted by Special Counsel Mueller (we’ll come to that). But Flynn’s firing and prosecution were not due to his discussion of sanctions with Kislyak, as tirelessly portrayed by the collusion narrative. Flynn was fired for inaccurately describing his Kislyak conversation to Vice President Pence and other administration officials, and he was prosecuted for summarizing that conversation inaccurately in statements to FBI agents.
On January 12, 2017, The Washington Post’s David Ignatius published a leak from an unidentified “senior U.S. government official,” describing Flynn’s communications with Kislyak after Obama announced the anti-Russia sanctions. Naturally, the classified leak was not the crime that interested the journalist. Ignatius instead focused on an imaginary crime — one that just happens to have been under consideration at that very time in the top tier of the Obama Justice Department: Flynn’s flouting of the Logan Act.
Deputy Attorney General Yates was theorizing that it might be possible to prosecute Flynn under this vestige of the John Adams administration (1797–1801), a dark time for free-speech rights. The statute purports to criminalize “any correspondence or intercourse” with agents of a foreign sovereign conducted “without authority of the United States” — an impossibly vague phrase that probably means permission from the executive branch. No court has had an opportunity to rule that the Logan Act is unconstitutional because, realizing its infirmity, the Justice Department never invokes it. In its 219-year history, the Logan Act has not resulted in a single conviction; indeed, there have been only two indictments, the last one in 1852.
Yet, the Logan Act appears to have been what the Justice Department had in mind. In later Senate testimony, Yates recounted that, in the first days of the new administration, she and Mary McCord (then-chief of Justice’s National Security Division) brought their ongoing concerns about Flynn to the attention of Don McGahn, then the White House counsel. According to Yates, “the first thing we did was to explain to Mr. McGahn that the underlying conduct that General Flynn engaged in was problematic in and of itself.” The “underlying conduct,” of course, was Flynn’s communication with Kislyak — his temerity to engage in talks with foreign officials without approval from the Obama administration.
Since this Logan Act theory does not pass the laugh test, Yates also had a fallback rationale: “blackmail.” This may have been even more ludicrous.