When rumours began to circulate over the weekend that Special Counsel Mueller would be serving indictments on Monday one name apart from Paul Manafort’s was often quoted, which was that of President Trump’s first National Security Adviser, General Michael Flynn.
In the event Flynn was not indicted on Monday. However there are three possible cases which could be brought against Flynn and there are rumours that Mueller is considering indicting him on any one of them:
(1) a case under the Logan Act on the grounds that his conversations with Russian ambassador Kislyak were a breach of the Logan Act, which prohibits private US citizens from conducting diplomacy purportedly on behalf of the US;
(2) a case for obstruction of justice on the grounds that Flynn supposedly lied about his conversations with Russian ambassador Kislyak, supposedly in order to avoid a prosecution under the Logan Act; and
(3) a case under the Foreign Agents’ Registration Act (“FARA”) because he failed to register properly his lobbying work for the Turkish government.
There have also been allegations that General Flynn did not report properly the payments he received from RT for appearing on its channel.
In my opinion if General Flynn is prosecuted under any one of these charges he ought to refuse a plea-bargain and should defend himself. Briefly:
(1) No prosecutions have been brought under the Logan Act since it became law in 1799, possibly because there is a widespread view that the Logan Act is actually unconstitutional.
Not only would a prosecution of Flynn under the Logan Act look frankly oppressive, but in my opinion such a prosecution would be actually absurd given that at the time Flynn spoke to ambassador Kislyak he had already been publicly named by President elect Trump as his National Security Adviser and as a top official of the incoming administration he could not be considered simply a private US citizen.
As it happens what is known about General Flynn’s conversations with ambassador Kislyak suggest that he was not seeking to undermine the foreign policy of the United States. Instead he is believed to have told Kislyak that Russia should react with restraint to the sanctions imposed on it by the Obama administration in December in view of a possible improvement in relations with the US after the Trump administration came into office. Importantly however it seems that Flynn made no commitment on behalf of the United States that the sanctions imposed by the Obama administration would be lifted.
In other words Flynn was simply doing his job as President elect Trump’s pick as National Security Adviser, in light of which I can see no grounds to bring charges against him under the Logan Act.
(2) Since in my opinion no crime was committed under the Logan Act whatever “lies” Flynn is supposed to have told about his conversations with ambassador Kislyak cannot in my opinion amount to an obstruction of justice.
I would add that I have always doubted that what Flynn subsequently said about his conversations with Kislyak were necessarily lies at all. It seems that since at the time of the most crucial conversation with Kislyak Flynn was actually on holiday in the Caribbean he did not make contemporaneous of the conversation or have support staff with him to make notes for him. His subsequent comments about the conversation were therefore based entirely on memory.
To the extent that Flynn is supposed to have been wrong about some of the things he said to Kislyak during the conversation it is quite likely that he simply made a mistake.
I would add that since the transcripts of the conversations between Flynn and Kislyak which the FBI is known to possess have never been made public or shown to Flynn it is impossible to say with any certainty how wrong or mistaken about this conversation Flynn actually was.
On the strength of what our old friends the “anonymous sources” who have seen the transcripts say is there, it seems that Flynn’s errors were inconsequential. Even the “anonymous sources” admit that Flynn did nothing wrong during the call.
(3) As to the violations of FARA, it seems that Flynn did report both his lobbying work for the Turkish government and his payments by RT, only not in the right way. There was therefore no attempt at concealment and these are at best ‘process crimes’ with no malice involved or intended.
Given the very thin case against General Flynn I doubt that a US jury would convict him, all the more so as he is a highly decorated soldier who has served the United States in war zones like Afghanistan and Iraq – something which I would expect to weigh heavily on a jury.
The fact nonetheless remains that though all the facts about what Flynn has done are known, he has so far neither been charged nor told that he won’t be. Instead he has been left in suspense for more than half a year.
This is disgraceful treatment of a highly decorated soldier who has served his country, and it should be brought to an end without any further delay.