The great American philosopher, Jeffrey Lebowski, once said, “This is a very complicated case. You know, a lotta ins, a lotta outs, lotta what-have-yous.”
His Dudeness wasn’t talking about national security or, certainly, the strange case of General Michael Flynn. But his observation is no less relevant.
Indeed, the hysteria surrounding Flynn, President Trump’s fired national security adviser, might make for an interesting sequel to “The Big Lebowski.” Instead of crazy German nihilists attacking El Duderino, how about Congress and the mainstream media mugging a distinguished former three-star general? The parallels are striking.
Given the myriad of accusations leveled against Flynn, here is a primer to help untangle the torturous plot and determine what laws may have been violated, if any at all.
Because it is complicated. Lotta ins, lotta outs, etcetera.
The Paid Speech
In December of 2015, Flynn traveled to Moscow to deliver a paid speech to a Kremlin-backed news organization called Russia Today. He insists he met with Pentagon officials both before and after the speech which the Defense Intelligence Agency appears to concede. Flynn’s lawyer, Robert Kelner, issued this statement:
“DIA’s letter actually confirms, in a terse section that is partly redacted, that General Flynn provided information and documents on a thumb drive to the Department of Defense concerning the RT speaking event in Moscow, including documents reflecting that he was using a speakers bureau for the event. The Department was fully aware of the trip.”
It should have been obvious to the Pentagon that Flynn was getting paid. Speakers bureaus don’t provide services for free speeches.
But did Flynn specify the exact amount of money he earned? It is unclear and disputed. If it is true that Flynn met with Pentagon officials and they did not object to what he was doing, that can be considered tacit, if not express, approval… which is all he needed, legally, to deliver his paid speech. (See 37 USC 908)
While a strict reading of the law seems to prohibit retired military officers from taking pay from a foreign government without approval, Flynn maintains he received his speaking fee from RT, not the government itself. Therefore, his decision to advise the Pentagon was technically unnecessary.
However, even if the law is contorted such that Flynn is found in violation of the disclosure/approval rule, it is a civil violation, not a criminal one. The penalty is usually a forfeiture of the payment and, in some extreme cases, a suspension of retirement benefits for a period of time.
Representatives Jason Chaffetz (R.) and Elijah Cummings (D.) who preside over the House Oversight & Government Reform Committee claim Flynn may have violated a different federal law by not fully disclosing his speech income from Russia when, later, he sought security clearance to work for President Trump as his NSA.
If true, then it might be considered a crime to “knowingly falsify or conceal” information in a security clearance form, punishable by a fine or up to 5 years behind bars. But people are rarely prosecuted because it is exceedingly difficult to demonstrate that the failure was “knowingly.” It is not a strict liability crime. The feds would have to prove “specific intent.” That is, Flynn tried to deliberately deceive the government. Good luck with that.
It does appear that Flynn was sloppy when it comes to paperwork. But that is normally not a crime.
And then there is the practical aspect to consider. Do prosecutors really want to criminally charge a retired three-star general for giving a speech? It seems not only excessive, but anathema to our cherished right to free speech under the First Amendment. Not to mention the right to earn a living.
The Emoluments Clause
Rep. Cummings and others claim Flynn may have violated the “Emoluments Clause” of the Constitution. What is that? It’s the controversial, albeit obscure, provision in the Constitution which forbids office holders from accepting “emoluments.” Unfortunately, the Framers did not define an emolument. So, that’s problem number one.
Legal scholars say it means using a government office to confer a benefit to a foreign government in exchange for money. In other words, bribery. But here, what real benefit did Flynn confer? Giving a speech hardly constitutes much of a meaningful benefit.
Moreover, the U.S. Supreme Court has said that ordinary business transactions are not emoluments. The Flynn speech sure looks like a fairly ordinary business transaction. He gave a speech and got paid for it.
Also, bribery is a transaction cloaked in secrecy. Flynn appears to have told the Pentagon all about his speech.
Problem number two is Flynn was not a government employee when he gave the speech. He was retired. Yes, the Department of Justice has interpreted the Emoluments Clause as applying to all retired military, but that opinion has never been upheld by federal courts in a way that would apply to someone like Flynn.
Just because DOJ says it applies, doesn’t make it so under the law. Flynn could argue that “emoluments” were never intended to include former office holders or the Framers would have chosen to write it that way.
Finally, in the history of this country, no one has ever been criminally prosecuted under the Emoluments Clause. Mostly because it’s vague and ambiguous, but also because the clause does not identify a penalty for its violation.
Flynn still faces endless questions about his conversation with Russian Ambassador, Sergey Kislyak, and whether he gave a truthful accounting of it to the FBI. Again, “specific intent” to deceive comes into play. If Flynn interpreted his conversation with Kislyak differently than the FBI, there is no crime of perjury or obstruction of justice.
The persistent claims that Flynn violated the Logan Act are preposterous. Passed in 1799, it prohibits private citizens from interfering in diplomatic disputes with foreign governments. But no one has ever been prosecuted under the Act, largely because it’s regarded as a patently unconstitutional violation of the First Amendment. Besides, Flynn was not acting as a private citizen.
While Flynn’s request for congressional immunity may strike some as implying guilt, we should remember that innocent people often seek immunity, too. He was likely following the sage advice of his lawyer who fears his client could become the target of overzealous prosecutors determined to conjure erroneous charges. It happens.
And so… the case against Michael Flynn is, in many ways, like “The Big Lebowski.” Bizarre and overwrought, with a hopelessly complex plot that’s ultimately unimportant. A comedy in search of a crime.
In keeping the wolves from the door, Flynn can take comfort in the wisdom of Jeffrey Lebowski: “This aggression will not stand, man!”
Well said, Dude.