There are a few important points here. To start, there is no indication that Flynn made any quid pro quo with the Russians. The Times reports this, and I have confirmed it with my own sources. Second, the Logan Act, which dates back to 1799, is likely unconstitutional. The Justice Department does not prosecute Americans violating it. And in this case, the private citizen was about to become the national security adviser. If it’s illegal for incoming U.S. officials to discuss policy with foreign adversaries, then the hard work of preparing the transition of a foreign policy agenda for an incoming administration will be outlawed. The FBI investigation is more serious, but so is disclosing the bureau’s ongoing investigations to the press.
It’s also been reported that Flynn had contacts with Russians during the election. That’s a bit more troubling, but in and of itself it means very little. It’s also not unprecedented. In 2008, an Obama foreign policy adviser, Daniel Kurtzer, traveled to Damascus to offer the government there his views on the Syria-Israeli peace talks.
Many Democrats, including former Secretary of State John Kerry, took meetings with Iran’s ambassador to the United Nations during George W. Bush’s final years as president, at a moment when our military leaders accused Iran of killing U.S. soldiers in Iraq by providing militias with improvised explosive devices. If Bush’s FBI had launched Logan Act investigations in that period, would Democrats have cheered on the leaks of the investigations?