No one loves a good round of Schadenfreude more than I do, but the enthusiastic talk of impeachment surrounding the demise of National Security Adviser Mike Flynn is a tad premature. Flynn’s abrupt resignation in the wake of revelations that he lied about his communications with the Russian Ambassador, Sergey Kislyak, before taking office, has undoubtedly concerned Democrats, the intelligence community, and some Republicans. Hopefully, this incident has refocused them on finding out whether any crime has been committed by Trump or his lieutenants with regard to Russia (or anything else). However, according to what we currently know, it does not provide grounds for legal action against Flynn or Trump.
What we know as of February 14
Let me give a quick recap of how we got to Flynn’s resignation: During the transition, the Obama Administration imposed sanctions on Russia in retaliation for its hacking of the DNC and individuals associated with the Democratic Party. Shortly thereafter, Mike Flynn spoke to Ambassador Kislyak on several occasions, and questions arose in the Press about whether they discussed Obama’s sanctions. On January 15, then Vice President-Elect Mike Pence told CBS that Flynn had not discussed sanctions with Kislyak. On January 26, Acting Attorney General Sally Yates told the White House Counsel there was evidence that Flynn did speak with Kislyak about sanctions. On February 9, the Washington Post reported that Flynn had lied to Pence about the content of his conversations, and Trump denied he had any knowledge of it. On February 13, Flynn resigned his post, essentially stating that he unintentionally excluded the full content of his communications with Kislyak when briefing Administration officials. On February 14, the New York Times reported that Trump had known about Flynn’s misconduct for at least two weeks.
Why Flynn’s actions probably are not criminal
Neither I nor anyone else outside the intelligence community can say for sure whether any of Flynn’s actions are criminal, because we do not yet know the content of those conversations. However, we do know that the only statute applicable to the facts as we know them, is the Logan Act of 1799, and that it probably won’t be applied in this case.
The Logan Act, frequently raised in political infighting, has only seen one indictment in 218 years, when, in 1803, a farmer advocated the creation a new western state allied with France. Since then it has been thrown around a lot: Ronald Reagan suggested using it against Jesse Jackson and Speaker of the House Jim Wright; Congressman Steve King suggested using it to limit Speaker Nancy Pelosi’s international travel; and it was widely argued that when 47 Republican members of Congress wrote a letter to Iran trying to sink the Obama Administration’s nuclear deal, they violated the Act. The Logan Act is a political football, and Flynn’s actions don’t seem sufficiently severe to inspire prosecutors or Congress to use it as anything else.
Although Trump was not yet President and Flynn not yet his adviser, Flynn’s conversations took place after a valid election, and it is normal for transitional administrations to talk to foreign leaders. The DOJ has said it is unlikely to bring criminal charges. Frankly, it would be shocking if they did. Even when Richard M. Nixon, who definitely had a copy of the Dictator’s Playbook on his bedside table, sent a representative to sabotage the Vietnam peace talks during the 1968 presidential campaign, neither he nor any of his associates were prosecuted. This is not a law to hang our hopes on.
Where there’s smoke, there is fire … somewhere
There is definitely something rotten in the State of Trumpmark. We may not be able to indict Michael Flynn or impeach Donald Trump for Flynn’s conversations with Russia, but there is a lot of circumstantial evidence of some sort of misconduct. In addition to the many examples of Trump’s bias toward Vladimir Putin, the New York Times reported today that Trump’s aides regularly spoke to Russian Intelligence operatives during the course of the campaign. Hopefully, this will lead to further investigation by the Press, Congress, and the intelligence community into whether prosecutable crimes were committed. Until then, we need to hold our guns on impeachment talk. This is like building any criminal case. We have to find evidence Trump and his associates violated the law. We cannot afford to jump at every plume of smoke we see. We have to go find the fire.