· by DANIEL HEMEL · December 4, 2017
Michael Flynn leaving federal court in Washington on Friday. His filings reveal that a “very senior member” of the Trump transition team almost certainly violated the Logan Act. Susan Walsh/Associated Press
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.” The crime carries a punishment of a fine or up to three years in prison.
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.
The conversation between Mr. Flynn and Mr. Kislyak about the Security Council resolution clearly falls within the Logan Act’s scope. The Obama administration, frustrated with Israeli settlement activity, had chosen not to use its veto to block the measure. Mr. Flynn’s overture to Russia was thus an attempt to countermand the current administration’s decision regarding a highly sensitive foreign policy subject.
The following week, Mr. Flynn asked Mr. Kislyak not to “escalate the situation” in response to American sanctions against Russia in retaliation for meddling in the 2016 election. The effort to persuade Russia to respond moderately to American sanctions appears to be a less egregious Logan Act violation — because it was not an effort to “defeat” Obama administration policy — but it too falls within the act’s prohibition on trying to influence a foreign government in a dispute with the United States.
In response to the Flynn plea and questions about the Logan Act, President Trump’s lawyer, Ty Cobb, said that the statute doesn’t apply to transition team members. But that claim is surely false. A president-elect and his team may certainly introduce themselves to foreign leaders and conduct discussions with them about foreign policy. But there is a wide gap between those activities and trying to persuade a foreign power to thwart the sitting president’s foreign operations and initiatives. The former is not prohibited by the Logan Act; the latter is flatly banned.
Some commentators have suggested that the Logan Act is a dead letter under a legal doctrine known as “desuetude,” which holds that a law can become unenforceable after a lengthy period of disuse. Only two people have ever been indicted under the statute, and neither of those indictments resulted in a conviction.
However, no federal court has ever refused to enforce a law because of desuetude. In 1964, a federal district court specifically held that the Logan Act remains valid. Quoting Shakespeare’s “Measure for Measure,” the court said of the statute: “The law hath not been dead, though it hath slept.” And the Supreme Court referred to the statute as recently as 1991.
Others have argued that the Logan Act cannot be enforced because it violates the First Amendment’s free speech clause. But the Supreme Court rejected a similar argument in a 2010 case called Holder v. Humanitarian Law Project.
The court held that the freedom of speech must give way to a federal statute banning “material support” for foreign terrorist groups. The court’s rationale — that citizens do not have an absolute First Amendment right to aid a foreign entity adverse to United States interests — would seem to apply regardless of whether the entity is a terrorist group or an often-hostile foreign state.
Why, then, have so few cases been brought under the law? Often prosecutors do not bother to bring cases against defendants whose wrongdoing poses little danger. Very few private citizens have any hope of persuading a foreign country to change its United Nations votes. Mr. Flynn, however, was no ordinary private citizen but the incoming national security adviser. He would soon be in a position to reward Russia for cooperating with the Trump transition team.
Another reason that few cases have been brought under the Logan Act may be that citizens who conspire to thwart United States foreign policy rarely do so in the open. Richard Nixon, as a candidate during the 1968 campaign, almost certainly violated the statute when he sought to sabotage the Johnson administration’s peace overtures to North Vietnam, but details of Mr. Nixon’s effort did not emerge until after his death.
“Nixon did it,” never much of an excuse for a president, thus doesn’t work here. Indeed, Mr. Nixon’s sabotage of the peace talks illustrates the importance of the statute and the potentially dire consequences of its violation.
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.
Daniel Hemel and Eric Posner are professors at the University of Chicago Law School.