WASHINGTON– If reports are true, National Security Adviser retired Lt. Gen. Michael Flynn could be the first public official ever fired for violating the Logan Act, according to some legal analysts.
“Flynn violated the Logan Act if he did discuss with the Russian Ambassador prior to the new administration taking office lifting of U.S. sanctions,” said Nick Akerman, a former assistant U.S. Attorney who was also a member of the Watergate special prosecution team.
“The statute is crystal clear that: “Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer of agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to dispute or controversies with the United States, or to defeat the measure of the United States [commits a felony}.”
The Washington Post and The New York Times reported last week that Flynn spoke with Russian Ambassador Sergey Kislyak in late December, citing unnamed U.S. officials. The newspapers reported that Flynn gave the impression that the Trump team might be amenable to lifting economic sanctions that were imposed on Russia by the U.S. and the E.U. following Moscow’s 2014 annexation of the Crimea from neighboring Ukraine.
Then-President Barack Obama in his final weeks in office issued additional sanctions against Moscow after evidence showed that Russian president Vladimir Putin interfered in the U.S. presidential election to undermine the candidacy of Hillary Clinton.
The Logan Act prohibits unauthorized individuals from negotiating with foreign governments and was adopted by Congress in 1799 following former Pennsylvania legislator Robert Logan’s unauthorized discussions with the French government.
On Jan. 13, then-Trump transition team spokesperson Sean Spicer told reporters that the late December Flynn-Kislyak phone conversation was merely an informal courtesy call.
Flynn’s spokesperson told The Washington Post on Thursday that the retired lieutenant general does not recall discussing the possibility of lifting sanctions during the call but also said the prospect such conversation had occurred could not be ruled out.
A Russian government spokesperson told CNN on Friday that Flynn and Kislyak did not discuss sanctions during the call.
Scott A. MacGriff, who like Akerman, also is a former Justice Department attorney, said Flynn may have violated the Logan Act, but MacGriff was careful to emphasize that no has ever been prosecuted for violating the statute.
“If the reports are accurate, there may have been a technical violation of the statute- however, keep in mind that in the more than 200 years since its enactment, there has never been a prosecution for violation of the Logan Act,” MacGriff said.
MacGriff said that even if Flynn did violate the Logan Act that that in-and-of itself should not automatically warrant his resignation.
“If he violated the statute he should not resign for violating the Act,” MacGriff said. “There is a policy argument to be made that favors an incoming National Security Advisor speaking with the Ambassador of a major foreign power – particularly after an election has occurred and just prior to the inauguration.”
Sean M. Bigley, an attorney specializing in national security cases, said Flynn did not violate the Logan Act.
“I don’t think Flynn violated the statute as we in the national security community interpret it, nor do I think he should resign for basically doing his job,” Bigley said.
“The members of Congress who are championing such an outcome are grandstanding. Unfortunately, there are a lot of people who will buy into this nonsense simply because they heard someone in Congress state it as fact,” he added.
House Minority Leader Nancy Pelosi (D-Calif.) demanded Monday that Trump fire Flynn.
“Michael Flynn’s conduct was alarming enough before his secret communications with the Russians were exposed… National security demands that General Flynn be fired immediately,” Pelosi said in a statement.
Bigley noted that the absence of legal precedent would most likely prevent Flynn from being charged even if prosecutors believed he did violate the Logan Act.
“Courts look to precedent in interpreting laws,” Bigley said. “Since we have no actual legal precedent of prior prosecutions here, the matter would turn on how similar situations have been handled by incoming administrations in the past.”