National Security

Gregg Jarrett: Could Michael Flynn be charged with a crime?

Report: The former national security adviser denied to the FBI that he discussed sanctions with the Russians; reaction from Gregg Jarrett, Fox News anchor and attorney

 

Former National Security Adviser Michael Flynn is now the subject of intense speculation as to whether he broke the law by telling the FBI he never brought up U.S. sanctions during a discussion with the Russian ambassador before Donald Trump took office.

Here is a look at the relevant laws.    

Is Deceiving the FBI a Crime?

To be sure, lying to the FBI can constitute a serious felony. If Flynn swore to tell the truth, it is perjury. If his statements were not under oath, it is obstruction of justice and/or making a false statement to law enforcement.          

However, prosecution would depend entirely on the content and context of Flynn’s words during his recorded conversation with the ambassador. Did they speak specifically about sanctions? Or was it a general discussion about expelled diplomats --which was part of the sanctions package? 

If the word "sanctions" was never mentioned, then it is a semantical distinction with a legal difference. Interpretation is the key. If Flynn interpreted his conversation with the ambassador differently than the FBI, there is probably no crime. 

Also, the length of the discussion is critical. If the subject of sanctions was merely a passing reference with little substance, then Flynn's claim that he did not really recall all of the discussion seems more credible, making it a legally valid defense. 

A successful prosecution of the above-mentioned crimes requires proof of “specific intent.” That is, that Flynn made a false statement with knowledge of its falsity, rather than as a result of confusion, mistake or faulty memory. The defendant must have acted “willfully and knowingly.” 

If Flynn believed his statement to be true when he made it, even though it was false, the case against him cannot be proven. So far, there is no evidence which gives rise to such proof.      

Did Flynn Violate The Logan Act?

The Logan Act prohibits private citizens from interfering in diplomatic disputes with foreign governments. Again, it depends on what Flynn said. If he made no promise to lift sanctions, then he didn't interfere with anything. Hence, no illegality.

Moreover, Flynn will surely argue he was not acting as a private citizen, as the law defines it, but in a wholly different capacity --as a government representative about to assume office and that his communication with an official of a foreign nation is no different than what other incoming administrations have done (and should do). Indeed, it is precisely what President Obama did before he was sworn into office.     

Flynn’s intent is relevant. If he intended to act on behalf of the incoming Trump Administration, then there is no violation of the Act.

Finally, the Logan Act was passed in 1799. It was a political slap by the Federalists at Thomas Jefferson. For more than two centuries it has never been enforced and no one has ever been prosecuted under the Act -- largely because lawyers, judges and legal scholars universally regard it as a patently unconstitutional violation of the First Amendment. 

So, let’s dispense with the Logan Act drama. It is nothing more than an obscure "Jeopardy" question. 

Gregg Jarrett is a Fox News legal analyst and former defense attorney.

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