Below is my column in The Hill on a largely overlooked part of the recent material to be released in the Flynn case as well as the testimony released by the House Intelligence Committee: the focus on the Logan Act as the way to charge former National Security Adviser Michael Flynn. Indeed, I recently disagreed with former President Barack Obama on clearly false legal statements made about the Flynn case. However, within those false statements was a crushing irony. Obama is mentioned in the documents as discussing the use of the Logan Act against Flynn. While Obama decried (falsely) the lack of precedent for the dismissal of the Flynn case, he previously discussed the use of a clearly unconstitutional statute against Flynn that has never been used successfully to convict a single person since the start of the Republic.
Samuel Johnson famously once declared that “patriotism is the last refuge of a scoundrel.” For prosecutors, that refuge is the Logan Act. Among the thousands of pages released from the Michael Flynn case and the House Intelligence Committee investigation is the prominent appearance of the Logan Act in high-level discussions. The law is widely viewed as a grossly unconstitutional law that, if ever actually used, would gut the First Amendment. Yet the record now shows the Logan Act became the last refuge for Justice Department officials in desperately trying to find a crime, any crime, to use against Flynn, the former national security adviser to President Trump.
I have written about the Logan Act for decades and called for its repeal. It is not that the law was a real threat to individuals, as it has never been used successfully against any citizen since its enactment in 1799. Rather, it is an act that contradicts the defining values of this country. 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. Many of us in the free speech community have long objected that the law continues to be cited as a threat and remains a statutory monstrosity from one of the darkest periods of American law. Even those who dismiss the Logan Act as a nonentity generally agree that it could not be used constitutionally.
That brings us back to the recently released documents. We now know that, in late 2016, investigators completed their multiagency probe of Flynn, code-named Crossfire Razor, and found no evidence of any crime. They informed FBI and Justice Department leadership that they wanted to close the investigation for failure to find any “derogatory information.” The FBI Washington field office concluded that Flynn “was no longer a viable candidate as part of the larger Crossfire Hurricane umbrella case.”
We know now that former FBI Deputy Director Andrew McCabe decided that the absence of any crime would not be allowed to terminate the investigation. FBI special agent Peter Strzok instructed the FBI case manager to keep the investigation open and then sent a celebratory text to FBI lawyer Lisa Page, who responded, “Phew. But yeah that’s amazing that he is still open.”
The problem, of course, is that there remained the inconvenient absence of any crime. Indeed, we now know there never was any credible evidence of collusion with the Russians by Trump campaign officials. New transcripts show dozens of officials confirming they never saw evidence of collusion. That is when the FBI and Justice Department leadership collectively reached for the last refuge of the prosecutorial scoundrel: the Logan Act.
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. (McCabe was later found to have lied to investigators but, unlike Flynn, was never charged).
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.”
Keep in mind that the use of the Logan Act against the incoming national security adviser would have been not only patently unconstitutional but positively ludicrous. There was nothing illegal in Flynn responding to Russian diplomats upset about sanctions recently imposed against Russia, just days before the start of the Trump administration. Trump himself stated publicly that he wanted to reframe relations with Russia, including sanctions. The transcripts show Flynn encouraging the Russians not to retaliate and saying the administration would reexamine the relationship.
Consider the absurdity of using this law against the incoming adviser for speaking with foreign diplomats on the eve of the new administration. The use of the Logan Act in that instance is just slightly better than an Alien and Sedition Acts prosecution against WikiLeaks. We now know there never was evidence of collusion by Flynn or anyone in the Trump campaign. By December, career investigators in the FBI Washington field office wanted to stop investigating Flynn. Then, in January, every one of the major players at the FBI and the Justice Department justified further investigation under the Logan Act. Thus, the only crime being pushed was an unconstitutional act that has never been used successfully in a prosecution.
It turned out that they would not need it, however. Although FBI investigators said they did not believe Flynn intentionally lied (and noted that Flynn understood his conversation with Russian officials was monitored and presumably transcripted), that nevertheless was the charge former special counsel Robert Mueller ultimately used. Flynn fought the charges but pleaded guilty after Mueller virtually bankrupted him and threatened to charge his son.
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.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.