One issue from the beginning was whether Flynn’s call to Ambassador Sergey Kislyak violated the Logan Act, which bars private U.S. citizens from trying to influence another country about “disputes” with the United States. But that was always a somewhat shaky legal argument. As I noted in my Jan. 12, 2017, column, which first disclosed Flynn’s call, the Logan Act has never been criminally enforced.
I wrote on Feb. 11, two days before he resigned: “Michael Flynn’s real problem isn’t the Logan Act, an obscure and probably unenforceable 1799 statute that bars private meddling in foreign policy disputes. It’s whether President Trump’s national security adviser sought to hide from his colleagues and the nation a pre-inauguration discussion with the Russian government about sanctions that the Obama administration was imposing.”
In that column, I quoted a question posed to me by Rep. Adam B. Schiff (D-Calif.), the House Intelligence Committee chairman who would later lead the impeachment investigation of Trump. “Why would [Flynn] conceal the nature of the call unless he was conscious of wrongdoing?”
There was always a deeper problem, one that still isn’t resolved. Why was the Trump administration so eager to blunt the punishment Obama gave to Russia for what we now know was gross interference in our presidential election? In his Dec. 29 expulsion of 35 Russian diplomats, Obama was trying to impose costs on an adversary. The evidence shows that Flynn wanted to reassure this same adversary and to avoid confrontation.
How do we know that was Flynn’s intention? Because he said so in his Nov. 30, 2017, guilty plea admitting he had made false statements about his conversations with Kislyak. The “statement of the offense” that accompanied the agreement states that on Dec. 29, 2016, after discussions with another transition team official, Flynn “called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.”
Was Flynn improperly tricked in his Jan. 24, 2017, interview with the FBI into misstating what he had told Kislyak? If so, why did he resign and later plead guilty?
In Flynn’s Feb. 13, 2017, resignation letter, he admitted that he had made misleading statements to Vice President Pence about the Kislyak call. Here’s how he put it: “Because of the fast pace of events, I inadvertently briefed the Vice President Elect and others with incomplete information regarding phone calls with the Russian ambassador.” That’s not the FBI talking, it’s Flynn. And the question, again, is why he misstated the facts.
On the day he resigned, Flynn offered a more revealing account in an interview with the Daily Caller. He explained that the talk with Kislyak “was about the 35 guys who were thrown out. . . . It was basically, ‘Look, I know this happened. We’ll review everything.’ ”
Why does this matter? Because the issue Flynn was discussing with Kislyak was so serious. Russia had secretly subverted our democratic elections. Obama, who had delayed sanctions far too long, finally took action with the Dec. 29 expulsions. He did so on behalf of the nation, whose election system had been attacked.
The intelligence community had first disclosed Russia’s meddling on Oct. 7, 2016, in a statement that charged that “Russia’s senior-most officials” had conducted a cyberattack “intended to interfere with the US election process.”
That initial damning assessment was amplified in a Jan. 6, 2017, report, in which the intelligence community said Russia had tried to “denigrate” the Democratic candidate, Hillary Clinton, and “harm her electability and potential presidency” and that Moscow had a “clear preference” for Trump.
The Senate Intelligence Committee, led by a Republican, spent the past three years investigating whether our spy chiefs’ finding was correct. Its judgment: “The committee found no reason to dispute the intelligence community’s conclusions.”
We know the FBI made some serious mistakes in the Russia investigation. The misstatements and omissions by FBI officials in their applications for surveillance of Trump campaign aide Carter Page were egregious. The recent disclosures about how they prepared to question Flynn in 2017 should trouble anyone who worries about abuse of power by federal investigators seeking damning information from a suspect.
But none of that addresses the fundamental question that got this story rolling in the first place: Why was the incoming national security adviser telling the Kremlin’s man in Washington not to worry about the expulsion of 35 of his spies, because when the new administration took office, “we’ll review everything”?
That was the wrong message to be sending in December 2016. And with the accumulation of evidence since then about the scope of Russian subversion, it’s even more troubling.