The idea that Flynn had behaved illegally, let alone unethically or immorally or unconventionally, in discussing U.S. foreign policy with the Russians during the transition is beyond absurd. He was the incoming national-security adviser. Phone calls between incoming senior administration officials and foreign governments are common during a presidential transition. And given what is now known about the context of that phone call, the initial spin in the press that Flynn’s conversation with Kislyak had undermined the outgoing administration’s policy was misleading.
Why this reliance on the Logan Act in the first place? According to regulations, FBI investigations into “federal crimes or threats to national security or to collect foreign intelligence” require a “predicate.” The FBI cannot establish the predicate at will, the rules state: “The initiation of a predicated investigation requires supervisory approval at a level or levels specified by FBI policy.” It seems likely that Comey was looking for a rationale to continue the FBI’s pursuit of Flynn because the original rationale—the question of whether Flynn was a Russian asset—had come up empty. He could no longer legally investigate Flynn because the initial search had reached its end.
Only it hadn’t.