Did Michael Flynn break the law?

Published 4:43 PM EST, Tue February 14, 2017
03:16 - Source: CNN
Spicer: Trump asked for Flynn's resignation

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

Editor’s Note: 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.

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.