The Mueller-Rosenstein Logan Act
How a musty 1799 law became an excuse to squeeze Michael Flynn.
The continuing prosecution of Michael Flynn is a miscarriage of justice on many levels, but one angle that deserves more attention is the reliance by Justice officials on the Logan Act as an investigatory excuse.
The Logan Act is the appendix of U.S. statute books, a law that serves no useful purpose. The 1799 law bars private citizens from intervening in disputes between the United States and foreign governments. No American has ever been convicted under the law, though it is sometimes exploited for political ends. President Trump has picked up the Logan chant in attacking former Secretary of State John Kerry’s private talks with Iran’s foreign minister.
The law was especially dubious in application to Mr. Flynn, who as Mr. Trump’s appointee as national security adviser in late 2016 and early 2017 would naturally talk to foreign officials. He needed to get to know people he would soon deal with. Obama Administration officials apparently resented that Mr. Flynn was discussing President Obama’s December 2016 sanctions against Russia for meddling in the U.S. election with the Russian ambassador to the U.S. Yet whatever the wisdom of his conversations, the Logan claim is silly.
The Justice Department made this clear two weeks ago in its court filing seeking to drop its charges against Mr. Flynn. The filing explains that even the Obama Justice Department abandoned a possible Logan charge as too “difficult to prosecute,” a reason the FBI never opened an independent criminal investigation on a Logan basis.
Yet, strangely, the Logan Act rationale somehow made it into the memo that then Deputy Attorney General Rod Rosenstein wrote in August 2017 laying out the scope of special counsel Robert Mueller’s investigation. A section of the memo is devoted to Mr. Flynn, authorizing the Mueller team to investigate “crimes” he may have committed by “engaging in conversations with Russian government officials during the period of the Trump transition.”
Why was Mr. Rosenstein giving Mr. Mueller permission to indulge a dubious prosecutorial theory that was dropped by his own department eight months earlier? Mr. Rosenstein wrote his scope memo nearly three months after Mr. Mueller’s appointment, and it reads like the special counsel team grasping at any legal tactic it could find to pressure Mr. Flynn. In the end even the special counsel’s office dropped its Logan Act pursuit and squeezed Mr. Flynn to cop to lying to the FBI when even the interviewing FBI agents weren’t sure he was lying.
Mr. Rosenstein hasn’t had to explain his scope memo in public and under oath, and we’d like to hear him do so. We hope the Senate Judiciary Committee puts the question to him when Chairman Lindsey Graham begins hearings on the Russian collusion investigation in early June. While they’re at it, how about repealing the Logan Act?
Flynn critics have separately adopted the tedious chant that Mr. Flynn somehow got off easily, given his separate Turkey “crimes.” This is a reference to Mueller team claims that Mr. Flynn did not provide accurate Foreign Agents Registration Act filings to the Department of Justice about lobbying work he did for Turkey before he joined the Trump Administration.
Yet the 1938 FARA is almost as musty as the Logan Act. In the 50 years through 2016, the Justice Department brought only seven criminal FARA cases and won three convictions. Until it was resurrected by Mr. Mueller to squeeze information out of Trump associates, it was routine for Beltway operators to file belated or inaccurate reports—and work out fines or remedies with DOJ. Mr. Flynn’s work for Turkey was distasteful, but Mr. Mueller’s threat of a FARA charge was a new and unequal application of the law. In any event, Mr. Flynn was never charged with a FARA violation. The FARA accusation was gratuitously listed in a “statement of offense” against Mr. Flynn, though it was not part of the plea agreement.
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