Gregg Jarrett: Did Flynn or the Trump transition team violate the Logan Act? No

Michael Flynn lied. Not once, but twice. 

He lied to Vice President Mike Pence about his conversations with Russia. For that, he was fired by President Trump as national security adviser. 

Flynn also lied to the FBI about the same subject. For that, he was charged and pleaded guilty in federal court Friday to a single count of making false statements. 

As part of his plea, Flynn agreed to cooperate with Special Counsel Robert Mueller’s investigation. This inexorably invites two questions: Will Flynn implicate anyone else in the Trump administration, including the president? And if so, for what crime?  

There is nothing in Flynn’s plea agreement or “Statement of the Offense” that implicates President Trump in these conversations with Russia during the transition.

Some insight is offered in the “Statement of the Offense” that Flynn signed on Friday during his guilty plea. In the statement, Flynn identifies two separate conversations he had with Sergey Kislyak, Russia’s ambassador to the United States.

According to the statement, one conversation involved Russia’s reaction to a United Nations resolution on Israeli settlements. The other, a week later, dealt with Russia’s response to President Obama’s executive order on Russian sanctions. Each time, one or more “senior officials” on the Trump transition team conferred with Flynn on what information to convey.  

The only conceivable crime these communications with Russia could constitute falls under the Logan Act. But that antiquated law has no application for several reasons. 

First, the Logan Act was enacted in 1799. It makes it a felony for a private citizen to interfere in international disputes between the U.S. and foreign governments. But no one has ever been prosecuted under the act, principally because most lawyers, legal scholars and judges agree that it is likely unconstitutional.

Since no one has ever been convicted of violating the Logan Act, no court has ever ruled on its constitutionality directly. 

However, courts have commented on the Logan Act from time to time. In 1964, the U.S. District Court for the Southern District of New York (Waldron v. British Petroleum Co., 231 F. Supp. 72) stated that the act was likely unconstitutional because it is vague, overly broad and ambiguous.

Numerous scholarly publications have argued that the Logan Act also violates the right to free speech under the First Amendment. So its legal efficacy is doubtful.    

Second, Flynn was not acting as a private citizen, as the law defines it. He was serving in a wholly different capacity – as a government representative of a president about to assume office.

Flynn was preparing the incoming administration for the foreign policy challenges that lay ahead and establishing the kind of vital contact that assists a new president in formulating effective relationships and policies. In other words, Flynn was doing his job. He did it in the same manner that other transition officials have in previous administrations.  

Several months ago I spoke with Professor W. David Clinton, chairman of the Political Science Department at Baylor University, who co-authored the seminal book “Presidential Transitions and American Foreign Policy.”

Clinton stated that it is quite normal and routine for incoming transition teams to have lengthy and detailed conversations with foreign government officials about forthcoming changes in policies. Indeed, Clinton said it would be abnormal if this did not happen. 

“It is common for representatives of other governments to get in touch with the incoming presidential administration to begin informal relationships and address relevant issues,” Clinton said. “It is not unusual. Transitions are fairly long. The incoming administration needs to inform itself of foreign policy. Getting to know people and foreign governments is widely done and beneficial to the U.S.” 

Finally, it appears that Flynn and the transition team did not “interfere” with a diplomatic dispute, under the meaning of the Logan Act. To the contrary, Flynn sought ways to de-escalate tensions over U.S. sanctions by asking the Russian government to limit its response “in a reciprocal manner.”

By doing this, Flynn was acting for the benefit of the U.S. government and in a manner not inconsistent with the Obama administration’s wishes and policy. He can hardly be criticized for it, much less prosecuted.   

On the other matter, Flynn admits he urged Russia to either delay or veto a United Nations resolution that condemned Israel’s settlements as a “flagrant violation” of international law. This surely came as no surprise to the Russians or the Obama administration, since it conformed with the same public statement President-elect Trump issued that very day

Flynn contacted the Russians about the pending vote. Trump tweeted: “The resolution being considered at the United Nations Security Council regarding Israel should be vetoed.” 

Thus, there was nothing secret, nefarious or illegal about Flynn’s communications with Moscow. And in the end, it didn’t matter. Russia ignored Flynn’s request and voted in favor of the resolution, which passed with 14 votes.

Officially, the U.S. took no position on the resolution. By abstaining, it neither supported the resolution nor opposed it. And since the measure imposed no sanctions, it was nothing more than an idle diplomatic statement.  

Even if Trump reached out to the Russians in an effort to find common ways to fight the scourge of ISIS in Syria, as ABC is reporting, such actions are entirely commensurate with longstanding U.S. goals in the war on terrorism and in no way impede the policy of the man he was chosen to succeed.    

Are these, therefore, violations of the Logan Act? Absolutely not. 

An incoming president has every right to voice his position on matters of foreign policy. There is no evidence that Flynn’s actions interfered with anything that wasn’t already in the interests of the United States or otherwise altered the course of a diplomatic dispute. This is probably why Flynn was not charged under the Logan Act.    

The U.S. has never criminalized the conduct of foreign policy by incoming presidents. Others have sought to change overseas policy before taking office, sometimes quite openly. Significantly, there is nothing in Flynn’s plea agreement or “Statement of the Offense” that implicates President Trump in these conversations with Russia during the transition.

Nor is there any accusation or evidence that Trump or others conspired with Moscow to influence the presidential election during the campaign. This is supposed to be what Special Counsel Mueller is investigating. Yet, he has uncovered only ancillary wrongdoing that is entirely unrelated to so-called “collusion.” 

Flynn’s guilty plea to a single count of making false statements is the least serious of any the offenses he could have faced. It is likely he will be given probation.    

Still, it is inexplicable why a distinguished retired general like Michael Flynn would lie to the FBI about something that is not, by itself, a crime. Sometimes, smart people make stupid choices.   

But it would be a mistake to conclude that Flynn’s commitment to cooperate with the special counsel means that President Trump is in legal jeopardy. The president is certainly not under the Logan Act.

Gregg Jarrett joined FOX News Channel (FNC) in 2002 and is based in New York. He currently serves as legal analyst and offers commentary across both FNC and FOX Business Network (FBN).