Did the Trump transition team get approval to negotiate with the Russian government during the transition? According to CNN’s Jim Acosta, that claim came from a “senior White House official” a few hours after Michael Flynn pled guilty to one count of lying to federal investigators about his conversations with then-Russian ambassador Sergey Kislyak. If true, it would reduce the charge from Robert Mueller to little more than a technical misunderstanding with no substantial weight behind it.
But that’s a mighty big if:
A senior WH official told CNN that the Obama admin "authorized" Flynn's conversation with Kislyak. But former DNI Clapper just told CNN that's "absurd."
— Jim Acosta (@Acosta) December 1, 2017
Here’s James Clapper telling Jake Tapper just why that claim is a “stretch,” via The Hill:
Okay, James Clapper seems pretty clear that the Obama White House did not okay Flynn's shenanigans. pic.twitter.com/lEmGHJhquN
— Josh Marshall (@joshtpm) December 1, 2017
James Clapper, who served as the Director of National Intelligence under Obama, said that the claim that the Obama administration authorized Flynn’s contacts with Kislyak was “absurd,” adding that the administration was concerned by the communications at the time.
“That’s absurd. That’s absolutely absurd,” Clapper said on CNN.
“There was great concern at the time, not just with this particular contact, but with the violation of the principle that historically been followed of one president, one administration at a time,” he added. “So to say that we blessed it, or acquiesced it is a stretch.”
Is it possible? Yes, but it hardly seems likely, and not just for the reasons laid out by Clapper. The Obama administration had suddenly made Russia the scapegoat for Hillary Clinton’s loss and wanted to punish Russia publicly. Obama decided to expel 35 Russian diplomats, accusing them of being intelligence operatives behind the hacking and propaganda campaigns during the 2016 election. This diplomatic relationship was one of the highest priorities during the Obama administration’s last weeks, and the last thing they would have approved is having their political opponents interfering in the last opportunities they had to punish the Russians.
And it’s not just about the Russians, either. Besides Flynn’s attempts to keep the Russians from escalating the diplomatic tensions with expulsions of their own, he also tried to get Kislyak to delay a vote in the UN Security Council on Israeli settlements in the West Bank. Barack Obama had tried from almost his first day in office to make settlement freezes a precondition for US-backed peace talks and had tried a little election interference of his own in 2015 to push Benjamin Netanyahu out of office to get a win on settlements. The Obama administration had decided not to veto the resolution — a dramatic break from usual US policy — and Flynn wanted to undercut that Obama decision, too. The Israeli government had asked the Trump transition team to intercede, which in the end did no good as the Obama administration allowed the condemnation to pass on a 14-0 vote.
The Obama administration had clearly decided to settle scores with Israel and Russia on its way out the door. How likely is it that they would have granted the Trump transition team permission to stop them? Calling it a stretch is too kind; Clapper’s “absurd” is closer to the target.
Besides, if Flynn had permission to conduct these missions from Obama, why not just say so from the beginning? Why would he and Trump go through repeated public denials about these activities, and especially why would Flynn lie about it to the FBI? All he’d need to say is Sure I called them, because Obama/John Kerry/the White House janitor authorized it, and oh by the way, here’s the memo. End of probe, and end of liability. Instead, Flynn admitted lying about the nature of these calls and his attempts to end-run the existing administration on their policy goals, insipid as they might have been.
With all that said, though, what exactly makes this a crime, other than the lying about it? Presidential transitions are awkward affairs, where the American people have spoken about their leadership but the old administration gets to hang around for more than two months. The purpose of a transition is to make sure that the new administration has come up to speed by January 20th, and that can’t happen if they can’t contact foreign governments and begin working out diplomatic agendas.
The Logan Act doesn’t easily apply even if it weren’t a ridiculous and unenforceable appendage from John Adams’ single term in office. Presidents-elect aren’t truly “private citizens” for the purpose of the Logan Act, putting aside the fact that history is replete with private citizens engaging in diplomacy that was contrary to at least the public stance of an existing administration. Jimmy Carter’s interference in North Korea during Bill Clinton’s presidency and Jesse Jackson’s repeated attempts to negotiate with terrorists during hostage situations without authorization immediately come to mind.
None of this has anything to do with the election itself either, nor of colluding with Russians on their hacking campaign, which is supposed to be the focus of the Mueller probe. Perhaps Flynn has information on those issues that will prove valuable to Mueller, and the Kislyak calls are just his way to rope Flynn into cooperating, although Flynn didn’t join the campaign until months after the Russians penetrated the DNC. If all we get out of Mueller’s probe is obsessions over Logan Act “violations” during the transition, though, it’s going to be an utter waste of time, money, and political credibility.