Right, there goes Michael T. Flynn, out the back door of the Trump White House. Now that we’re finished applauding his resignation, folks are wondering about a couple of things. First, can he be prosecuted under the Logan Act? And second, should he be prosecuted.
There are, of course, problems. At least three problems. The first is the Logan Act is of questionable constitutionality. It’s never been really tested in court; nobody has ever been prosecuted for violating the Logan Act. Not even George Logan, after whom the law was named. The second problem is more political. The recently appointed Attorney General of These United States is Jefferson Beauregard Sessions III, who is undoubtedly tickled pink that the Logan Act is of questionable constitutionality. It gives Sessions the perfect opportunity to practice looking severe without having to actually do anything. The third problem is this: just what the fuck IS the Logan Act, and what was it intended to do?
The Logan Act is a perfect example of how history, which can be singularly cool, has a reputation for being mind-numbingly dull. I mean, we’re talking revolutions and piracy on the high seas — and that’s some seriously exciting shit, right there. But reading the Logan Act — well, it’s not long enough to actually put you to sleep, but it’ll make your mind wander. Anyway, here’s the history.
We (and by ‘we’ I mean ‘These United States’) had us a revolution. I’m assuming you already know this. A few years later, France had its own revolution. France had been pretty helpful to our revolution and they quite understandably expected the new U.S. to give them a reach-around. We didn’t — at least not to their satisfaction. So France got pissy and authorized French ships to plunder American merchant ships. President John Adams sent some envoys to France to straighten out the mess. The French listened to their arguments, then politely told the envoys “S’il vous plaît, uriner une corde.” Or words to that effect. The envoys returned to the U.S., reported they’d failed miserably, then went to a bar and made rude remarks about the French (I’m not entirely sure about that last bit with the bar and rude remarks, but it’s what I would have done if the French had told me to go piss up a rope).
Enter Dr. George Logan, a Philadelphia Quaker. Logan decided he couldn’t screw things up any worse, so he sailed to France, chatted with Charles Maurice de Talleyrand-Périgord and the good folks of the French Directory — and hey, bingo, the French changed their minds and stopped the plundering. Yay, sounding of trumpets, release of doves, everybody wins, right?
Right. Except for the politicians back in the U.S. who weren’t happy with civilians conducting unauthorized negotiations with foreign governments. Which is perfectly understandable. I mean, George Logan might have done a fine job, but the next guy might get us in a war. So they passed the Logan Act to prevent that sort of thing from happening again.
It’s easy to see why nobody has been prosecuted under the Logan Act. Back in the late 1700s, civilians could get away with pulling shit like that. Today, that’s not going to happen. Ain’t no Quaker going to show up on Pakistan’s doorstep (even if Pakistan had a doorstep, which it doesn’t) and negotiate a nuclear arms deal. And if General Michael Flynn had been an ordinary citizen, nobody in the Russian embassy would have paid any attention to him when he discussed the sanctions imposed on Russia by President Obama.
But that’s exactly why the Logan Act could be used in this case — because General Michael Flynn was NOT an ordinary citizen. He was an advisor to the President-Elect. He was expected to become President Trump’s National Security Advisor. He had influence and power, and even though he had no authority from the sitting POTUS, he had presumptive authority from the President-Elect.
Assuming Flynn actually did discuss lifting Obama’s sanctions on Russia (and since the transcripts of Flynn’s calls haven’t been made public, we can’t know that for certain), then he was a nominal civilian with enough influence to effectively undermine an action taken by the President of These United States. That’s a big fucking deal, and it’s exactly the sort of thing the Logan Act should be used to deter.
It’s absolutely worth testing the constitutionality of the Logan Act in this case. But somehow, I doubt the pixie-eared Attorney General will do that.
Very nice and flowery summary!
And, for what its worth- I agree and, more, you would find that some ~65,844,953 other US citizens would agree as well (aside from the ~3 – 5 million illegal voters, of course).
While we are now seeing Russia media siding with trump that the US media is the actual villian. Russians are actually promoting the fable that the anger towards trump is all courtesy of US media bias. (how divine)
trump hopes that flynn’s departure will be Deflategate v2017- that other issues will now move up in priority. But that overlooks the fact that Manafort remains a Russian consultant (and resident of trump tower nyc and, contrary to popular belief, still an adviser to trump) and Carter Page (a well-connected TX-based petro consultant and adviser to trump on foreign policy) negotiated a large oil contract last summer. He also spoke ‘on behalf?’ of the trump ‘administration’ about the dropping of US sanctions and… trump’s interest in Russian oil- definitely the strong appearance of a quid pro quo.
The Logan Act, obscure indeed, but alive- and deemed necessary enough to be crafted by politicians much brighter than those present now. Obscurity does not mean irrelevance. As we saw earlier this month, an obscure rule was used by McConnell and others in Congress to censure Sen Elizabeth Warren. Rule 19 was obscure… until the dust was blown away and it was invoked for what was deemed due cause.
Sessions has his own agenda, for certain- and none of it will be positive regarding civil and equal rights. If nothing else, promotion of charges against Flynn and Manafort and Page will put the trump group on defense- our counter punch to their disregard for our democracy and national security. Throw in the US Constitution and the Emoluments Clause and Sessions may soon be longing for his old rockin chair down south. I would think that any of the global, high value hoteliers have due cause to charge ‘conflict of interest’ etc against trump.
We can usually rely on history to give us a lesson on how to deal with stuff. Or if not a lesson, at least a guideline or a direction. But our current situation is completely novel. We’ve never had a situation like this before, so nobody really has a solid handle on where this thing going.
Trump can survive this, of course. His presidency is pretty much crippled, but he can survive in office for the next four years IF he can find a way to moderate his behavior. That doesn’t seem likely though.
People are saying we’re already in a Constitutional crisis. I don’t think that’s entirely accurate. I think we’re only in the early stages of the crisis. It’s going to get uglier.