Columns, Constitutional Law, Criminal law, Free Speech, Justice, Lawyering, Media, Politics

Logan Act Is The Last Refuge For The American Prosecutorial Scoundrel

440px-Michael_T_FlynnBelow 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.

127 thoughts on “Logan Act Is The Last Refuge For The American Prosecutorial Scoundrel”

  1. Pingback: Obama’s Michael Flynn Scandal - Nothing to Shrug At - Conservative Dispatch
  2. Pingback: Don’t Shrug at Obama’s Michael Flynn Scandal - Persian News
  3. Pingback: Don’t Shrug at Obama’s Michael Flynn Scandal | Select News 91
  4. Pingback: Don’t Shrug at Obama’s Michael Flynn Scandal - Non Perele - News Online
  5. Pingback: Don’t Shrug at Obama’s Michael Flynn Scandal – Awesome Fun

  8. Dr, Turley, I certainly hope that the favorable opinion of posterity isn’t your goal.

    Because those goalposts have now left the building.

    The sophistry of “Lost Causes” tend to get a dim view in history.

    1. Hart’s:
      Well you’ve managed to mix and incorrectly use about every metaphor available rendering your comment unintelligible. Bravo you get the malaprop award for the day! ESL?

  10. Let’s not forget when David Plouffe, former campaign manager for President Obama in 2008, tweeted this message:

    “It is not enough to simply beat Trump. He must be destroyed thoroughly. His kind must not rise again.” — David Plouffe (@davidplouffe) June 13, 2016

    If Trump and Barr, et al, do NOT drop the hammer on the Obama admin criminal cabal now, it is guaranteed that this corrupt Obama crew will rise again to destroy Trump. So Trump had better crush them now.

    1. Demoncrap NY Gov. Cuomo taxing volunteers who saved NY lives is just another Demoncrap insult added to injury (death in this case): in March Cuomo ordered, I repeat ordered all senior care facilities to accept covid-positive seniors, with absolutely no prior training, no PPE, and no supervision for employees.

      IOW Cuomo personally gave the death sentence to 3000 NY seniors. If this is not felony criminal negligence the term has no meaning.

      A few days ago, without fanfare, Cuomo rescinded his order. I guess he and the Grim Reaper met their stated goal.

      If you choose to live in NY and other of these liberal Demoncrap run cesspools, take a deep breath and think twice or thrice about it.

      Poster Natacha and her ilk: “Nothing to see here…”

  12. 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.
    _________________________________________________________

    So what??

    You might also include in the dozens of news reporters that wrote news stories that suggested Flynn’s discussions with Kislyak may have violated the Logan Act. When Flynn agreed to meet with the FBI lots of people had been talking about the Logan Act, but what does that have to do with the phony plea deal that Flynn made with Mueller ten months later? None of these people who talked about the Logan Act had any say in the plea bargain arrangement that Flynn made with Mueller.

    All this babbling about the Logan Act makes no sense at all. What has it got to do with Flynn agreeing to plea guilty to something he did not do?

    1. I respectfully request TDS victims like yourself stop lying and stop typing as if Flynn is the first and only person to plead to a crime he did not commit. It happens quite regularly.

      Independent persons (not TDS victims) needing proof need only Google “The Innocence Project” for innocent persons who were on death row (plead out) and are now free.

      TDS victims like the above poster would apparently rather those innocents be executed. BECAUSE THEY PLEAD GUILTY.

      I’d rather those TDS victims hammer a nail with their face.

      1. Correction: I presume persons plead guilty in exchange for a life sentence to avoid potential death penalty. So TDS victims would prefer those persons serving life sentence later found to be innocent should continue in their punishment.

      2. I respectfully request TDS victims like yourself stop lying and stop typing as if Flynn is the first and only person to plead to a crime he did not commit.
        __________________________________________________
        I ask what does any of this have to do with the Logan Act…
        Did you forget to answer?

    2. Flynn SHOULD HAVE NEVER even been questioned !!!!

      He was beaten down and destroyed and his son threatened, that’s the ONLY reason he pleased guilty . He had NO CHOICE !!

      1. Flynn SHOULD HAVE NEVER even been questioned !!!!

        He was beaten down and destroyed and his son threatened, that’s the ONLY reason he pleased guilty . He had NO CHOICE !!
        _____________________________________________________

        The story that Flynn lied to the FBI did not happen.
        The story is unbelievable because there was no reason to lie and Flynn knew the FBI had listened to the phone call. Unless you believe Flynn was trying to get arrested there is no possibility that Flynn lied to the FBI.

        So why does this phony unbelievable story that Flynn lied to the FBI even exist?
        It doesn’t exist because the FBI investigators said Flynn lied. They said he didn’t. The phony story exists because Comey, after he was fired, leaked a story to the press that Trump had tried to strong-arm Comey into not prosecuting Flynn for lying to the FBI.

        The story that Trump pressured Comey to “go easy” on Flynn is also a phony story that is unbelievable because the story that it is premised on (that Flynn lied to the FBI ) is phony and unbelievable.

        So Comey claims that the reason he leaked the story to the press is that he knew that it would trigger a Special Counsel investigation. Well right on cue, the next day we get Mueller appointed to investigate…

        So now we have a third phony unbelievable story that Mueller is investigating phony unbelievable story #2 which is based on phony unbelievable story #1. Isn’t it neat how phony unbelievable stories are created to back stop previous phony unbelievable stories…

        But there is still the problem that all of it is still phony and unbelievable because the original premise that Flynn lied to the FBI is still unbelievable.

        This is where the phony unbelievable plea deal between Flynn and Mueller makes its entrance. That is phony unbelievable story #4 and with that we have a complete circle jerk.
        Phony story #4 validates phony story #1. Phony story #1 validates phony story #2. Phony story #2 validates phony story #3 and phony story #3 validates phony story #4 and we are back to validating the original phony story. A perfect circle of logic that proves 2+2 does not equal 4.

        But just in case anybody doubted that this circular logic proves that Flynn lied to the FBI Trump weighs in the day after Flynn is charged to confirm that he knew Flynn had lied to the FBI.

        https://www.nbcnews.com/nightly-news/video/pres-trump-says-he-fired-flynn-for-lying-to-pence-and-the-fbi-1108420163773

        Fast forward a couple years, Bill Barr is handed the thankless job of untangling this sorry mess. Notice that Bill Barr presents evidence that Flynn did not lie to the FBI but he cannot state outright that Flynn did not lie. The best Barr can do is assert lamely that it doesn’t matter if Flynn lied. The reason is that if it is established that Flynn did not lie to the FBI that means Comey lied to Congress and Flynn and Mueller lied to the judge and Trump lied to everybody. They all lied about Flynn’s interview with the FBI.

  13. There is no truth in Barack Hussein Obama. He blasphemed the holy Ghost. We reccommend that people keep their distance from him.

    1. There are no ghosts in this world. They are made up children’s stories. Sorry to hit you with REALITY.

    1. Wow, after such an ordeal you want to demote him to FBI Head? Plus he’s military intel specialist, not a cop.
      In any case, he probably won’t want to go to work again for the same WH who threw him under the bus at the first little hint of heat exerted by media hacks. Pathetic!

      Better off suing DOJ, FBI & CIA and making some money finally.

      1. At the time it was thought the General did in fact lie to the VP. That in itself would quality withdrawing any appointment within the executive branch. So, I don’t see it as throwing him under the bus.

      2. WH was going off FBI/Intel info.

        I do not know how the convo went with Trump and Flynn before his departure.

        But someone who was attacked by the FBI would be great for fixing it, and Flynn was going to audit the intel agencies, that is partially why he was targeted. The FBI run by a Patriot would be great for finding all the moles in the Deep State.

  15. A lot of obvious partisan “shyte” in the above comments, none of which is worth the reading.

    I knew we were in trouble when, within weeks of his inauguration, Obama boarded US One for a world tour in what appeared to be an effort to encourage U.S. investment. My first thought, who is he working for, us or the banks?

    When he suggested we convene a congressional committee to overturn Citizens United, a decision by the way that I supported, that pretty much cinched it – Obama was not the “scholar” some believed him to be; he was, in fact, a constitutional fraud. And likely an intellectual fraud as well.

    He could have been a contender, perhaps even a superstar, “if he only had a brain.”

    1. It’s worse than that, Obama and Brennan started the Arab Spring that was designed to turn the ME totally over to political Islam, the Muslim Brotherhood and in turn brought about ISIS.

      They along with Hillary/Kerry and the rest of the Obama admin helped run Christians out of the ME. Genocide is what happened, Christians are being killed as we speak around the Muslim world.

  16. More fluff and stuff, none of which changes the following fundamental facts: 1. Flynn lied to the FBI; 2. Flynn lied to Pence; 3. Flynn pleaded guilty to lying, both in writing and orally before the Court; 4. Flynn’s guilty plea was part of a plea bargain to avoid prosecution over the fact that he was working as a paid consultant for Turkey, which he did not disclose, and which is also a violation of federal law; 5. Flynn was represented by competent counsel throughout.

    Flynn was NOT exonerated. Flynn is NOT a hero. 1,900 former federal prosecutors have called for Barr’s resignation because he is nothing but a pawn for Trump. And… the judge does NOT have to go along with this.

    1. LOL Yes the Judge does have to go along with it. That’s the law. Which you often misrepresent Natacha

      1. NO, Judge Sullivan does NOT have to accept Barr’s politically-motivated motion to dismiss. Flynn pleaded guilty and was convicted of the crime of lying to the FBI in exchange for dropping the charges related to failure to disclose that he was working on behalf of Turkey, which he also admitted to, and which is also a felony. In fact, Judge Sullivan can order an independent investigation. Even if Judge Sullivan were to go along with dismissing the charges, he could order that the dismissal was “without prejudice”, meaning that all the charges could be reasserted in the future once Trump and his flunkies stop stinking up our public buildings.

        1. Sullivan can dismiss with prejudice or without prejudice. What will he choose to do?

        2. Prediction is that Judge Sullivan will not go ‘quietly into the night’ on the Motion to Dismiss. Wait for it….

        1. The DOJ said they would not prosecute. If the Judge refuses, would he prosecute the case himself? If not, whom, my dear TDS victim Natacha? (Natacha speaks as much truth as Adam Schiff, which is none.)

          Yesterday on Chris Wallace’s show, the Demoncrap partisan Charles Lane who works at the Wash. Post (Jeff Bezos’ private newspaper/DNC mouthpiece) made the same pathetic, stupid, ridiculous claim as Natacha. Maybe they are the same DNC shills!

        2. “Page Not Found
          Our apologies, the content you requested cannot be located.”

          That’s your authority Natch.

          yes the judge has to dismiss. Exactly how would the Bureau of Prisons handle this. They couldnt. Will the marshalls lock him up in their back room for the term of his sentence? People like you don’t get the most basic things about how government functions in the real world.

          There is settled law. I m not going to brief it– you can go read Sidney Powell’s brief if you want understanding. You lack it. along iwth the liars in the media

          The judge today has tried a delay tactic asking for amicus briefs. A tactic which makes a farce out of his courtroom. Preposterous!

    2. Here are the following fundamental facts: Flynn was exonerated. Flynn IS an American Hero. Flynn served his country well. How has Natacha ever served his/her/its country? Flynn’s guilty plea was coerced under FBI threat and thus has no validity. The 1900 former federal prosecutors are all Obama lovers and Trump haters. Barr is no pawn for Trump, Holder and Lynch were pawns for Obama. the judge does have to go along with this. If he doesn’t not, who will prosecute the case? The Department of Justice will not prosecute it.

      1. If one substitutes “fiction” for “facts” in the above statement, it makes perfect sense.

        As it stands, it makes perfect nonsense.

    3. You’re a fluffer for the police state. Flynn plead guilty to a process crime to keep his son from being destroyed by a witch hunt as blatantly illegal as the one he was caught up in.

    4. Only to liars and/or idiots like you is it “news” that persons with no money to fight a trial plead guilty because they have no other choice. The DOJ forced Flynn to a penniless state, and they also threatened Flynn their next victim would be Flynn’s son. Unlike the FBI’s McCabe who collected $.5M free money for his defense, Flynn had no home and no money to fight a trial.

      Every one of the “retired” Democrat FBI agent and Intelligence slime balls swore under oath they had “no evidence” of any Trump collusion right to Adam Schiff’s face. Then later that day and every day for 2.5 years all those same lying scum bags including Schiff got on TV, looked into the camera, and said they had empirical evidence of Trump’s felony treason, thus creating out of thin air the Russian investigation. For Demoncraps like you that don’t know, that’s felony sedition.

      Much of the evidence was hidden at the time, but still, much of the blame rests on Nunez and McConnell for doing nothing during Trump’s first two years. As much as Sessions seams like a wonderful Southern gentlemen, he absolutely never should have recused himself, which gave the reigns to Rod Rozenstein a Demoncrap enemy of Trump. Instead, Sessions should have rooted out the sedition and exposed it.

      Further, someone in the US government who worked under Obungo disclosed Flynn’s name to the press, a felony worth ten years in a Federal penitentiary. We also know for a fact (sworn testimony) that Obungo knew of Flynn’s conversation with Kislyak, which even that disclosure was a wrong or possibly criminal, because Flynn’s did absolutely nothing wrong in that conversation, which by law was private.

      Everyone except for Cohen who was prosecuted under Mueller needs to be set free, all fruit from the poison tree.

      1. You’re a Fox News disciple. None of this is true. Flynn did LIE to the FBI, he admitted to committing this crime, both in writing and orally upon questioning to Judge Sullivan AND has been convicted. Judge Sullivan could and should just proceed with sentencing him. He took a plea on this count to avoid prosecution on the crime of failing to register as the agent for a foreign government. He was being paid a lot of money to represent Turkey while he was a national security advisor to Trump.

        Barr dropped the charges against Flynn not because he wasn’t guilty, but for political reasons. Flynn is NOT a patriot. Flynn was NOT exonerated.

        2. If someone tricked you, putting a gun to your head so to speak, threatening you & your family, land told you heck no there’s no need for you to have an attorney, it’s just a chat, what would you do? While we are at it, let’s just trash the Due Process clause. Or better idea, everyone sit still, not prejudge until all the facts come out from the Durham investigation. Stop second guessing. Its only ~~ a couple of months from now. Same comment on the ~~ 2,000 attorneys who signed their names on a letter without waiting for the facts.

        3. Justice demands that the accused who is no longer prosecuted by government go free. This is basic due process.

          But let the stupid Judge Sullivan Try. I relish the fool making an bigger arse out of himself .Today he invites “amicus briefs.” What a face. A saboteur in a black robe!

    7. 1. If you read the actual testimony from Flynn, he states, “I may have but I don’t remember” when asked about the critical aspects of his call with Kislyak. Further, the agents conducting the interview did not consider he had lied, when hey had the call transcripts to review.
      2. Flynn told Pence he did not discuss material matters with the Russians and he did not.
      3. He pleaded guilty after being bankrupted and being coerced by threats against his son.
      4. If he was not charged, it is not really germane to bring this up.
      5. If his council was so competent, why would they have urged him to accept a plea deal when almost any prosecution by Andrew Weisman is rife with prosecutorial misconduct.

  17. 1. It is time to scarify the federal criminal code.

    2. It is time to break up the Department of Justice into about five pieces.

    3. It is time to break up the FBI into as many pieces as possible.

    4. It is time to go Kenesaw Mountain Landis on the top echelons of the CIA, the FBI, and the lawyers at the Department of Justice.

    5. It is time to consider dissolving the CIA.

    6. It is time to repair recruitment, promotion, and discipline within the federal civil service.

    1. might as well amend article III and get rid of lifetime tenure for the black robed tyrants of the federal judiciary.

  18. Logan Schmogan. The substance of an underlying crime is not a prerequisite of the separate offense of lying t the FBI. It should be, or we should be as free to lie to law enforcement as they are to us, but that is not the case. All of the elements of the crime have been established and admitted.

    1. “All of the elements of the crime have been established and admitted.”

      That is true and it is time for parts of Obama’s DOJ and FBI to go to jail and Flynn set free with the abiity to sue the individuals that broke the law and corrupted the evidence.

      Quote the exact lie in context. Read the fBI reports. They show that Flynn was telling the truth.

    2. “Law Enforcement Or Gestapo Politics”

      “What’s our goal? Truth/admission or to get him to lie, so we can prosecute him or get him fired?”

      – Peter Strzok
      ___________

      “Badges? We don’t need no stinking badges.”

      – Mel Brooks
      __________

      “If you’ve got them by the balls, their hearts and minds will follow.”

      – Theodore Roosevelt

  19. WHO covered for China

    https://www.spiegel.de/politik/deutschland/corona-krise-bundesregierung-zweifelt-an-us-these-zur-entstehung-des-coronavirus-a-51add7cf-96b6-4d04-a2d0-71ce27cff69c

    “However, according to the BND, China has pushed the World Health Organization (WHO) to delay a global warning after the virus has broken out at the highest level. On January 21, China’s leader Xi Jinping asked WHO chief Tedros Adhanom Ghebreyesus to hold back information about a human-to-human transmission and to delay a pandemic warning.

    The BND estimates that China’s information policy has lost four to six weeks to fight the virus worldwide.”

    1. And china knew all the way back to October. The Chicoms are guilty of war crimes on humanity. The people of China must be freed from these evil tyrants., The world now pays the price for coddling them for so long. And Democrat leadership and the US press are complicit. This comes down to war in the end. Maybe not just between the PRC and China but two civil wars. Ones in which the Chicoms and the Democrat party leadership, are on one side, and the old hundred names of the Chinese people and the American people aka the deplorables are on the other.

      Who will win? Pick sides people it is upon us.

  20. “We are five days away from fundamentally transforming the United States.”

    – Barack Obama

Comments are closed.