Did Michael Flynn break the law?

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Story highlights

  • Page Pate: In discussions with Russia ambassador, Flynn may have been broken two laws: the Logan Act and making false statements.
  • Pate says there is enough evidence to support an investigation on making false statements, but in political climate, that's not likely

Page Pate is a criminal defense and constitutional lawyer based in Atlanta. He is an adjunct professor of law at the University of Georgia, a founding member of the Georgia Innocence Project, a former board member of the Federal Defender Program in Atlanta, and the former chairman of the criminal law section of the Atlanta Bar Association. Follow him on Twitter @pagepate. The opinions expressed in this commentary are his.

(CNN)President Trump's national security adviser, Michael Flynn, resigned on Monday night, and his resignation letter cited a conversation he had with Russia's ambassador during the transition period before Trump took office (and before Flynn had any official authority to engage in diplomatic discussions on behalf of the United States). In the letter, Flynn acknowledges "inadvertently" briefing Vice President Pence with "incomplete information" about that call.

There are two laws that may have been broken here -- the Logan Act and the crime of making false statements.
The Logan Act makes it a crime for a private citizen to communicate with a foreign government without proper authority in an attempt to influence the actions of the foreign government. President John Adams signed the Logan Act in 1799 in response to the actions of a state legislator (George Logan) who apparently went behind Adams' back and traveled to France to try and negotiate peace with that country during the undeclared Quasi War.
    Flynn is guilty of violating the Logan Act if he (1) had communication with a foreign government; (2) with the intent to influence that foreign government, (3) while being a U.S. citizen without the authority to engage in diplomatic discussions on behalf of the United States. If Flynn violated this law, he would be guilty of a felony and face up to three years in prison.
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    Based on what has been publicly reported, it looks like Flynn may have violated this law. There is no question he had discussions with the Russian ambassador while he was still a private citizen without any official authority to represent the United States in diplomatic matters. The only real question is whether he intended to influence how the Russians responded to the sanctions imposed by President Obama after the election.
    Given the timing of the call, and its likely purpose, it's certainly possible that the point of the call was to appease Russia so it would not retaliate with its own sanctions against the United States. I do not know the full substance of the call, but that should be available to investigators to review.
    For the most part, even though some of Flynn's defenders seem to argue that he violated the Logan Act, they have chosen to criticize the law itself. They argue that the Logan Act is an old law that's never really been used, and is probably unconstitutional anyway.
    It's true that the Logan Act is old. And, while there have been several discussions about pursuing a Logan Act case in recent years, it has apparently never been used to successfully prosecute someone.
    But so what? There are literally hundreds of federal crimes in the federal code that are rarely, if ever, used. While I personally think that many of these obscure federal "crimes" are outdated, misguided and patently unconstitutional, that doesn't change the fact that they are still on the books.
    Some have argued that the law is unconstitutional in two ways -- it violates the First Amendment by criminalizing free speech, and violates the Fifth Amendment due process clause because the conduct covered by the law is extremely vague. Another problem with the law is the fact that it hasn't been used in over 200 years. There is an arcane legal doctrine (desuetude) that calls into question that validity of a dusty old law like this that's never actually been used.
    But this old law is still in the Federal Criminal Code. Until Congress rewrites it, or some federal judge strikes it down, it is still good law. And if someone breaks that law, they should be prosecuted. People shouldn't be able to decide which laws they want to follow, especially people who are running the country.
    The Logan Act is not the only law that Flynn may have broken. Federal law also prohibits someone from making a false statement when discussing a matter within the jurisdiction of the federal government if there is an intent to deceive a government agency about an important matter. Making a false statement is a felony that carries up to five years in prison. Unlike the Logan Act, prosecutions under the false statements statute occur all the time.
    A false statement can be a lie, or an attempt to cover something up. The critical issue is whether the person intended to mislead a government official about an important matter. Did Flynn make a false statement? Based on what's been reported, it appears that he did. At some point, it appears that Flynn told Vice President Pence that his discussions with the Russian ambassador did not involve the recently imposed sanctions.
    That statement was made to a government official, concerned a matter within the jurisdiction of the federal government, and now appears to be false. The only questions are whether Flynn intended to lie or just made an honest mistake, and whether any false statement he may have made was intended to impair the government's investigation of his discussions with the Russians.
    Flynn has claimed that he "isn't completely certain" about whether his discussions with the Russian ambassador included any mention of the sanctions. That seems incredible to me. At the time, Flynn was expecting to become the national security adviser to the incoming president.
    The timing of the call suggests it was made in response to the sanctions that had just been announced by President Obama, and in an attempt to assure Russia that Trump had no intention of continuing the sanctions once he was in office, so there would be no need for Russia to retaliate with sanctions of its own. Russia seemed to have gotten the message because Vladimir Putin later announced there would be no new sanctions imposed against the US.
    In almost every false statement prosecution, the person being charged doesn't deny making the statement (especially where, like here, there is a recording of it). Instead, the first line of defense in these cases is for the person to say "I don't remember saying that." That's a good defense, if it's believable. If the government can't prove the person intended to lie, then the person can't be convicted of making a false statement.
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    But is Flynn's claim that he doesn't remember credible here? I doubt it. It would take a truly incompetent person to not remember the substance of such an important discussion. A prosecutor can never really prove what's in a person's mind when he made a particular statement. Instead, intent is usually proven by the circumstances of the statement itself -- what was actually said, when it was said and to whom, and what else was going on at the time.
    In this case, the circumstances that have been reported so far suggest that Flynn knew that what he was saying to Vice President Pence was false when he said it. But if Flynn simply told Pence, "I didn't say anything about the sanctions," that would just be a denial of wrongdoing and was not likely intended to change any official action of the government.
    Ultimately, even though I think there is enough evidence here to support an investigation, I don't see it happening. While former Acting Attorney General Sally Yates may have been willing to pursue this case, it's hard to imagine that the current leadership of the Justice Department will ever investigate.
    I can't see how any other federal or state agency would have jurisdiction and, even if one did, the motivation would likely not be strong enough to open a serious inquiry into Flynn's conduct now that he has resigned.
    In addition, there is no doubt that any appointment of a special prosecutor would be filled with controversy and criticized as pure politics, especially if the investigation focused on violations of the Logan Act, a law that may be unconstitutional.
    Flynn's call with the Russian ambassador and what he said about it to Vice President Pence will almost certainly have political consequences for the Trump administration. But I don't think it will have any legal consequences for Flynn, personally, despite evidence that he may have broken the law.