In the wake of the decision to drop the case against Michael Flynn, there has been a rush by various people to call it an outrageously partisan act by AG Barr. However, over the weekend Jonathan Turley pointed out that the case against Flynn was premised on the Logan Act, a 1799 law which has never been successfully used to prosecute anyone. Despite the fact that it is considered a “harmless relic,” President Obama, James Comey, Andrew McCabe, Sally Yates and others decided it was an appropriate way to go after Flynn. Here’s Turley on the history of the law:
The law was a product of its time, as John Adams was never one to suffer opponents gladly.
At the time, Adams favored and signed a treaty with Great Britain that led to the Quasi War with France. The Jeffersonians favored France, and one of them, George Logan of Philadelphia, went to Paris to try to end the hostilities. Adams was irate over what he called the “temerity and impertinence of individuals” such as Logan. He persuaded Congress to pass the flagrantly unconstitutional act, making it a crime to have “correspondence or intercourse with any foreign government or any officer or agent” about disputes. The same Congress passed the infamous Alien and Sedition Acts used to arrest opponents of Adams, including journalists.
The only reason the Logan Act remains on the books is that it is treated as a harmless relic.
In late 2016 as the incoming Trump administration was being formed, the FBI had decided to close an investigation (Crossfire Razor) into possible misconduct by Flynn because they had found no evidence he had done anything wrong. But after a memo suggesting the closure of the case was sent around, Peter Strzok asked that it be left open. So the FBI had an open case, what it lacked was any evidence of a crime. Enter the Logan Act and Flynn’s call with Ambassador Kislyak.
When Strzok overruled the career prosecutors and investigators to keep open the investigation, he immediately raised the Logan Act as a possible way to charge Flynn. We previously learned that former acting Attorney General Sally Yates also raised the Logan Act as a possible charge, and we know that McCabe pushed the Logan Act in the absence of any other crime…
The new material shows that former FBI Director James Comey also raised the Logan Act, with President Obama, in discussing FBI surveillance of Flynn. In one meeting, Justice Department officials were surprised that Obama already knew of the surveillance even though Yates was not aware of the facts. One document states, “Yates had no idea what the president was talking about, but figured it out based on the conversation. Yates recalled Comey mentioning the Logan Act.”
Turley concludes that Flynn could never have been prosecuted under the Logan Act. That would have been a stretch against anyone but that’s especially true for an incoming National Security Adviser days before a new president is sworn in. There was no chance this bogus case would ever go anywhere. But by sending FBI agents in to talk casually with Flynn, Strzok and others were able to set up the claim that Flynn had perjured himself. And after the special prosecutor brought him to the point of bankruptcy and threatened to prosecute his son, Flynn pleaded guilty to that charge. Turley concludes:
Perhaps it is fitting that these Obama administration officials turned to the Logan Act. Obama, who had dismissed Flynn from another post, opposed his appointment as national security adviser. It did not matter if there was no evidence against Flynn. As President Adams declared in calling for enactment of the Logan Act, there must be punishment for those with the “temerity and impertinence” to challenge those in power.
So after no evidence of collusion or a crime by Flynn was found by the end of 2016, Strzok, McCabe, Comey, Yates and perhaps even Obama retreated to that last refuge of the prosecutorial scoundrel, the Logan Act, under the apparent theory that an unconstitutional crime is still better than no crime at all.
The fact that an unsustainable case based on the Logan Act was the underlying crime here may explain why Andrew McCabe appeared on CNN last week offering what Turley described as “revisionist history” of the case. As Ed pointed out here, McCabe made at least two false statements about Flynn. First, he claimed that the decision to drop the case against Flynn, which was halted by Strzok at the last moment, was a “close question.” In fact, the FBI had determined it had “no derogatory information” about Flynn. This was not a close call.
Secondly, McCabe claimed Flynn was setting up “surreptitious meetings” with Russians but that wasn’t true. Flynn’s call to Kislyak was part of getting up to speed on his new job as National Security Adviser and had been reported to the transition team. As Turley put it, “It is not ‘surreptitious’ just because McCabe did not know about…”
I’m sure the gnashing to teeth from Comey, McCabe, Strzok, and others will continue, but the basis of this case was junk from the beginning. Here’s hoping we learn even more from the Durham investigation.