Did Michael Flynn Break The Law?

On the night of Monday February 13th 2017, retired Lt Gen Michael Flynn unexpectedly resigned from his post as National Security Advisor He held the office in President Donald Trump’s administration for just 24 days

He resigned over a growing controversy around his communications with Russian officials Flynn may have discussed American international policy with Russia before President Trump took office, and before Flynn himself was appointed to the White House Acting Attorney General Sally Yates described Flynn’s behaviour as “highly significant” and “potentially illegal” If so, he could be prosecuted and jailed But did Michael Flynn really break the law? The details of Flynn’s conversations with Russia are still unclear

What is known, is that he spoke on the phone with Russian ambassador Sergey Kislyak on the same day that President Barack Obama extended economic sanctions against Russia Vladimir Putin was surprisingly nonchalant about Obama’s actions against him When Flynn was asked if he had discussed the likelihood of Trump lifting those sanctions, he denied it Trump’s press secretary, Sean Spicer, also denied it More significantly, Vice President Mike Pence denied it too on live TV in January 2017

However, the NSA monitors the Russian embassy’s communications They knew what Flynn said to the ambassador After the Wall Street Journal reported that Flynn’s communications were under investigation, he was forced to deny again that he talked about the Russian sanctions A day later, The Washington Post revealed that Flynn had discussed the sanctions with Russia Flynn resigned

Sally Yates then revealed she warned the Trump administration about Flynn’s behaviour, when she was the acting Attorney General She believes he violated the Logan Act, an obscure law from 1799 that prohibits a US citizen from directly or indirectly communicating with a foreign government without authority In other words, private citizens cannot conduct U

S diplomacy The punishment is a fine or up to three years in prison However, it is questionable whether Flynn actually broke the law In the 218 years since it was written, there have been no convictions made under the Logan Act

The vague wording of the Act, combined with the lack of legal precedents, makes it difficult to say whether Flynn did anything illegal by talking to ambassador Kislyak about US policy In fact, even if Flynn were charged, his defence might argue that he was a member of Trump’s transition team The president-elect announced Flynn would be his national security advisor on November 18th, 2016 – a month before the phone call, and two months before he began working as part of Trump’s administration

Law professor Stephen Vladeck says that, as part of the presidential transition team, Flynn could have been acting with the authority of the United States On the other hand, Flynn may have committed a different crime His dramatic departure from the White House was prompted by his botched attempt to cover his tracks In February 2017, Vice President Pence confirmed he learned Flynn had talked about policy with Russia – 15 days after the White House knew – and long after he defended Flynn on TV Flynn seems to have deliberately misled the Vice President and the American public

Moreover, he lied to the FBI when they asked him if he’d discussed sanctions with the Russia ambassador Title 18 of the United States Code says “whoever…knowingly and wilfully… falsifies, conceals, or covers up… a material fact; makes any materially false, fictitious or fraudulent statement… or makes or uses any false writing or document… shall be fined [or] imprisoned” This law supersedes a US citizen’s Fifth Amendment rights

People convicted under this law include businesswoman Martha Stewart, George W Bush’s Chief of Staff Scooter Libby, and Enron CEO Jeffrey Skilling Former White House ethics lawyer Norm Eisen says Flynn will be prosecuted if he lied to the FBI The problem, however, goes deeper than that Although we know Flynn misled Vice President Pence, it seems President Trump knew Flynn’s secret for at least three weeks before the former general resigned

Sean Spicer says the President asked Flynn to resign, yet insists Flynn did nothing illegal The FBI told Trump about their investigation into Flynn, yet the Vice President was still not informed If Flynn did break the law, then it seems Trump may have been complicit in hiding the crime Moreover, the scandal around Flynn has brought new light onto longstanding accusations that Trump and his team have close ties to Russia and Vladimir Putin – even to the point of working with the Russians to influence the 2016 Presidential election The concern is that these ties leave the administration vulnerable to blackmail and control by Putin’s government

Trump has repeatedly denied his connections to Russia The Senate and House Intelligence Committees are already reviewing Russian involvement in the election and Trump’s aides Nevertheless, Republican and Democrat politicians are calling for an independent commission to examine the Trump administration’s connections to Russia Already there are fears that the Republican Committees and FBI Director James Comey are too much under the thumb of Trump to properly oversee an investigation into the President and his friends Furthermore, if Flynn is charged under the Logan Act, it would fall under the jurisdiction of Attorney General Jeff Sessions

He is controversially loyal to Trump, making any verdict on Flynn questionable Former general counsel Stan Brand says an independent prosecutor would need to be appointed to keep the judicial system clean Before all this, however, is another Constitutional violation Flynn committed in 2015 The House Intelligence Committee is investigating the payment Flynn received for appearing on the state-owned Russian news network RT As a former member of the Department of Defense, the Emoluments clause of the Constitution forbids him from accepting gifts or money from foreign nations

The Pentagon says Flynn never had permission to appear on RT or to be paid for it Yet, law enforcement officials doubt he’ll be charged with this offence Overall, it seems that Michael Flynn’s conversation with the Russian ambassador did violate the Logan Act He also misled senior officials in the government However, these are not really criminal offences

The crime he did commit was to lie to the FBI as part of a risky cover-up Ultimately, if Flynn is charged and found guilty of a crime, and Trump is found to have been part of the cover-up, then it would provide sufficient grounds for him to be impeached by Congress Flynn’s behaviour could be the start of a much bigger scandal

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