Why Michael Flynn Might be Seeking Immunity
Did Flynn’s Foreign Ties Violate an Obscure Federal Law?
Is Michael Flynn guilty of violating the Logan Act, and if so, does it matter? He may have broken another, more important law.
In the debate over whether Donald Trump’s team conspired with Russia prior to the election, the new president’s opponents often invoke the Logan Act, an obscure 18th century law designed to prevent citizens from freelancing in foreign policy.
That talk has heated up last week in response to reports that former General Michael Flynn, who briefly served as Trump’s National Security Adviser before resigning, is seeking immunity in exchange for his testimony.
University of Texas Law Professor Stephen Vladeck argues that Trump’s opponents are looking in the wrong place. He notes that the Logan Act, which has never been used to successfully prosecute a US citizen, has very little relevance today.
Vladeck tells WhoWhatWhy’s Jeff Schechtman that more relevant might be Flynn’s potential violation of another law, the Foreign Agent Registration Act — which was specially designed to force private persons to disclose payments they received from foreign powers to influence the US government.
With the word “treason” thrown around by Trump’s opponents, Vladeck also addresses the question of whether any of the behavior we have seen — or that we are likely to find out about — rises to that level.
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Jeff Schechtman: Welcome to Radio WhoWhatWhy. I’m Jeff Schechtman.
It’s a little sad but also positive, I suppose, that every time there’s a national scandal we learn more about government and the law. How many of you had ever heard of the Emoluments Clause of the Constitution until a few months ago? How much have you learned lately about national security, counter-intelligence, and even the computer systems in the White House? In this context, one of the things we’ve heard about, particularly relevant, because it’s about former National Security Adviser Mike Flynn, is something called the Logan Act – a heretofore obscure 18th-century federal law – it suddenly could be at the heart of Flynn’s desire for immunity before testifying before Congress, or talking to the FBI. Here to explain the Logan Act and more about the law is my guest, Stephen Vladeck. He’s a professor of law at the University of Texas Law School. His teachings and research focus on federal jurisdiction, constitutional law, and national security law. It is my pleasure to welcome Stephen Vladeck here to the program. Stephen, thanks much for joining us.
Stephen Vladeck: Thanks Jeff, it’s a real pleasure to be with you.
Jeff: It’s great to have you here. This obscure law from the 18th century, I’m sure that even as a law professor, is not something that you had been thinking about a whole lot until a couple of months ago. Tell us a little bit about the Logan Act.
Stephen: Sure, I mean the Logan Act actually finds a way to sort of come up every now and then. it might help to start with the background. So Dr. George Logan was a Pennsylvania man and a prominent supporter, right at the very end of the 18th century, of Thomas Jefferson, and of the faction at the time with what’s known as the Democratic Republicans. This is of course while the Federalists, led by President John Adams, were still in control in both the White House and Congress. And this meant that there were some pretty big divisions on US foreign policy, perhaps none bigger than whether US foreign policy should be more positively disposed toward England, which was of course the view of the Federalists, or towards France which was the view of the Jeffersonians. Of course at the time you couldn’t be both, it was one or the other. Anyway, so George Logan goes to France and purports to commence various discussions and negotiations with various emissaries of the French government on the theory that perhaps you can somehow frustrate the foreign policy of the Adams administration, and promote what he hopes is going to be a foreign policy of the, as yet not-realized, Jefferson administration. This causes all kinds of scandal once it’s reported back at home, and it leads Congress to pass a statute that is still on the books today. And that is, you know, what’s named after Dr. George Logan, that we now call the Logan Act, a criminal prohibition on the basically involvement and intercourse in foreign relations and foreign policy by Americans. So if folks actually want to look it up online, I mean the statute is, 18 U.S.C. § 953. And what it basically says today is, “Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States,” is committing a crime, and basically could be fined, or imprisoned, or both. That statute is still there, but Jeff, it’s never been used, and so we hear about it every now and then, you know, when we have prominent Americans doing things that look like they’re conducting foreign policy, as you say, most recently with Mike Flynn.
Jeff: If it were to be used today, if a prosecutor were to decide to bring it forward, how do you think the courts would view it today in a contemporary framework?
Stephen: Sure, I think, and I’ve written on the Just Security blog, that I think courts would be pretty skeptical, for a couple of different reasons. The first is, you know, the time when the statute was written in 1799, it was really a very different time in American history. And for constitutional purposes, most importantly, it was long before the Supreme Court really breathed life into the First Amendment and its protections on speech. The Logan Act is what we would today call a content-based restriction on speech. It is regulating the ability of Americans to speak to foreign governments, agents, officers thereof, not in general, but based on what they’re saying. So just to put this in context, if I were to send a letter to Angela Merkel, the Chancellor of Germany, that just says, “Hey, Angela, I’m a huge fan of yours, could you send me a picture?”; that doesn’t violate the Logan Act. But if I send her a letter saying, “Hey, I have some ideas on how you can mess up US foreign policy,” that might – and so anytime you have that kind of distinction, a statute that makes particular speech legal, or illegal, based on its content. The Supreme Court today just applied something called, strict scrutiny, on where that statute will only survive if the government has a compelling interest in prohibiting such speech, and if the prohibition is what we call narrowly tailored, if there’s no narrower way, less content-based way, to achieve the same goal. I for one think the Supreme Court would have virtually no trouble striking down the Logan Act if it were ever used today. Indeed I think that’s part of why we see it thrown up by commentators, but not by prosecutors.
Jeff: Is there any other legal mechanism that exists to prevent individuals today from essentially conducting freelance foreign policy in ways that might adversely affect the US government?
Stephen: I mean there are. You know, one of the things that has been a real modern innovation has been to create much more sort of strict economic restrictions on conducting business, for example with foreign governments, foreign corporations. The executive branch, they have a lot of power to identify foreign governments, and even foreign private enterprises, that Americans have to apply for licenses to do business with, which gives the Treasury Department, or sometimes the State Department, at least something of a say in what kind of communications can happen on those channels. But also, I mean, I think it’s worth pointing out in this digital age, Jeff, is there really something to be afraid of if a private citizen is simply trying to shape or influence US foreign policy? I think the Logan Act is an anachronistic throwback to not just a very different time in First Amendment jurisprudence, but to a very different time and communication in general. It would’ve been unheard of at the time the Logan Act was enacted for individuals to take out op-eds in foreign newspapers, write for corporations to have such obvious cross-border interests, for international institutions to have such an important role to play in at least some parts of our lives. So, you know, I think there’s sort of two different questions here. One is, “What should we be able to prohibit?” Two is, “How has history sort of passed the Logan Act by to a point where the concern it was really meant to cut off isn’t that a big deal today?”
Jeff: The thing that we hear so frequently, particularly when there’s any change of administration, is that we only have one administration, one president at a time, and there certainly is concern about sending mixed signals, and sending adverse signals, to foreign powers in some instances.
Stephen: No, I think that’s right, and so to me one of the interesting issues that came up with the Mike Flynn episode is that folks who thought Mike Flynn was violating the Logan Act, pointed specifically to statements he made, conversations he had, communications he was involved in during the presidential transition, that is, while President Obama was still in office. But after the election, after it was clear that then President-elect Trump was going to become president. And so, you know, Jeff, there’s an interesting question about what should happen in that period? The Constitution has long sort of been understood to create this lame-duck president. And the incoming president, this is where I think that the statute may itself have a carve-out. So the statute is, as we said a few minutes ago, only makes it a crime if the citizen in question is acting “without authority of the United States.” Well, you know, I think there’s an interesting question, about whether a president-elect who is not president yet, but who is going to be the president soon, who’s going to be the, you know, leader of the government, the principal articulator of our foreign-policy soon, is really acting without authority of the United States. Congress has actually taken a number of steps, in the last 10 or 15 years, to give transition teams more formal authority, to give them more power to do things like fill vacancies, set up offices, you know, start sort of building infrastructure, so they can walk in on January 20th and not have to start from scratch. I actually think it’s not nearly as clear, even if the Logan Act were viable, in general, that it would be available to prosecute members of transition team, when it’s just a matter of time before those same individuals are going to be in a position to, you know, conduct this foreign policy, directly and overtly.
Jeff: Has there ever been historically any attempt on the part of Congress, between the time the Logan Act was written and now, to really relook at it and address it in contemporaneous terms?
Stephen: So in a word, no. Congress, for better or worse, has actually generally left all of these interesting but largely antiquated statutes enacted during the sort of late Federalist period on the books. So we have the Logan Act. We have a statute called the Alien Enemy Act, which allows for pretty harsh measures against citizens of countries with which the United States is at war. We have statutes like the Neutrality Act, which was passed around the same period, to prevent Americans from, you know, sort of helping to bring the US into a war. You know, these statutes really haven’t been modified or amended since they were passed in the late 1790s. And so, it raises this really interesting question of, “Why?” If Congress really thinks this is a problem, obviously Congress can revisit these statues. Congress can amend them. Congress can repeal them. In the context of the Logan Act specifically, I think Congress doesn’t think that it’s a problem, frankly because it’s never been used. And because there’s no real sense that there is a missing opportunity, and that there’s sort of all these bad things that can’t be punished because of the Logan Act, for lack of a better word, desuetude, the fact that it falls into such dormancy. Maybe I’m wrong, maybe Congress actually has really good ideas about how they want to fix this and just haven’t got around to it yet, but one would think that, you know, somewhere along the way in the last 218 years, if this really was something worth fixing, Congress would’ve sat down and tried to do it.
Jeff: You mentioned the economic aspect of this, and really that goes to another issue, in fact one that’s also involved Flynn, which is the idea of the Foreign Agent Registration Act as kind of another way to monitor this kind of activity. Talk a little about that.
Stephen: Yeah, I mean, so the Foreign Agent Registration Act is actually, I think, very quietly the real story here. The Foreign Agent Registration Act is nowhere near as well-known as the Logan Act which is interesting because in some regard it’s a much bigger deal. And the Foreign Agent Registration Act basically dates to just before World War II. I think it was first enacted in 1938, and the basic idea behind it is, it’s not a substantive bar on anything, rather it’s a procedural statute that requires any individual who is representing the interests of foreign powers in a political, or even quasi-political capacity, to disclose their relationship with that foreign power to the relevant federal agency. I think today that it’s almost always the Justice Department, and basically to let the government know, let the US government know what they are in the United States to do, and how much they’re getting paid. Right, so the idea behind the Foreign Agent Registration Act is that the US government has a right to know when those, who are seeking to influence the shape and development of US policy, or indeed those who are seeking employment within the higher levels of the US government, are in fact being paid to do that by a foreign power. Now, I said it’s a procedural statute. All it requires is compliance with those reporting rules. And failure to comply with those rules is where you get into trouble. But you mentioned Mike Flynn, we actually know that Flynn had failed to comply with the Foreign Agent Registration Act, not with regards to Russia, but with regard to Turkey, that he had actually received, he and his consulting firm had received fairly substantial payments from the Turkish government. The concern I think that arises here is that Flynn is not alone. Right? Are there other members of the Trump campaign team, of now the Trump administration, that have not properly disclosed their relationships with foreign agents, with foreign powers that are triggered by the statute? So I actually think that at the end the day, if there is a criminal statute, that is most likely to be an issue when we think about all of the money, and influence, and concerns about the role of foreign governments in the election and afterwards – it’s the Foreign Agent Registration Act, not the Logan Act, that’s going to be the story.
Jeff: And what has been done in the past in terms of prosecutions under the Foreign Agent Registration Act?
Stephen: I mean there have been prosecutions. The Justice Department also has a mechanism for bringing civil claims under the Foreign Agent Registration Act. Really what the government is trying to do in these cases is separate out the malicious and intentional violations from the accidental violations. More often than not, when you have an accidental violation, the government’s approach has been to send a sort of sharply worded letter to the relevant person and have them ameliorate the problem by reporting, right? By actually providing the government with all the information the statute requires. There have been prosecutions though where the government has said, “Listen, you know, you had a duty to tell us. You didn’t tell us. You continued to push for, you know, projects or initiatives without disclosing that you were doing so at the behest of a foreign government. And so now you’ve got to go to jail.” Right, there are actually cases like that. They’re not like thousands of them, but it’s far more prominent historically than the Logan Act has been.
Jeff: Are there other pieces of legislation that are relevant to these issues that we’re talking about that might be worth looking at or that we might be hearing about in the next several months?
Stephen: You know, a lot of folks have been throwing out the idea that, let’s assume, just for the sake of argument, that the worst form of allegations are true. Right, that the Trump campaign team was in fact colluding with the Russian government, not to distort the results of the election, but to influence the election, otherwise shape the outcome. It’s not actually clear to me that that is otherwise illegal. But also, I mean, Jeff, there’s some folks who have been saying that’s treason. And I think we need to be very careful about treason, right? Treason is the only crime that’s defined in the Constitution. The Constitution defines it quite carefully as consisting only of levying war against the United States, or adhering to its enemies. And for better or worse, we’re not at war with Russia. I mean, it may seem like it, people may want us to be, but war in this context is war in the constitutional sense, which is a war that has been declared or otherwise authorized by Congress. So even if the worst form of this story is true, it’s not treason, may not even be illegal, other than the violations of the Foreign Agent Registration Act. The real damage, the real story, the real implications are political – which is how comfortable are we, as a polity, going to be with the notion that it’s possible that foreign governments have been influencing not just the substance of our policies, but the outcomes of our elections. Those are the kinds of matters historically that criminal law has just not been designed to handle, and that have been designed much more for political resolution. I think that’s why you’re seeing so much pressure on Congress, as opposed to prosecutors, to really be leading the charge here, and to really be whatever the ultimate answer is, whatever the truth is, to have some kind of comprehensive unassailably independent fact-finding to make sure we understand exactly what, you know, what’s going on here.
Jeff: You talk about the war aspect of it. It’s interesting in that context that we’re hearing from a number of members of Congress, both left and right, talking about the Russian actions, in terms of hacking, were an act of war against the US.
Stephen: Yeah, you know, that rhetoric is out there. I guess I am a little more skeptical that hacking by itself is an act of war. You know, there’s been a lot of discussion among legal and policy thinkers who spend a lot of time talking about the laws of war, in what we call international humanitarian law, about exactly when a cyber attack does and does not cross the threshold, from annoying problematic, probably illegal under domestic law, to act of violence that triggers non-conflict. And it seems to me that wherever that line is, it probably has to include at least some kind of kinetic consequence, that is to say, hacking that produces some kind of military result. Whether it’s disabling the United States’ ability to engage in defense of operation, sabotaging military equipment, leading to a loss of territory through military conquest. I mean, historically, those have been the kinds of considerations that have governed the threshold question of when you reach an armed conflict. It seems to me that, you know, some kind of cyber campaign to spread disinformation, is not by itself, an act of war. And if it is, it’s quite possible that we’re in a lot more wars than we realize.
Jeff: And of course that is this whole issue of really how to look at this in contemporary terms, in terms of information warfare, and what all of that means, and how it ultimately might be interpreted by the courts.
Stephen: That’s right, and this is why, not to sound like a… not to beat a dead horse, that this is why I think, you know, the most important point that I hope everyone takes away from our current moment, is how much we still don’t know, right? And how the real sort of deficit right now is information. And this is, I think, why you’re seeing so much pressure on various constituencies on Congress, on the courts, through Freedom of Information lawsuits, on the executive branch to get behind some kind of fact-finding inquiry, just so that we’re all talking about the same underlying facts when we’re trying to figure out what the relevant legal and policy conclusions are. I think there’s no question, whether it’s the Logan Act or some other statute, that Mike Flynn, you know, was engaged in some fairly sketchy behavior. I think the much more interesting question is how much further did that go? And it seems to me that we all have an interest in knowing the answer to that question. Not in an effort to relitigate the election. The election is over, President Trump won, end of story. But to have a sense of whether, and to what extent, we should be concerned about the policies that are now emanating from this administration. Whether they really are those folks’ view of what is best for all Americans. Or whether they are even in some modest respect, what those folks believe is best for the relationships with foreign governments. I think that’s why the real question today is, “How are we going to get to the bottom of that?” Not, jumping ahead to what are the legal violations that we might find.
Jeff: Stephen Vladeck, University of Texas Law School professor. Stephen, I thank you so much for spending time with us today here on Radio WhoWhatWhy.
Stephen: Thank you, it’s been a pleasure.
Jeff: Thank you. Thank you for listening and joining us here on Radio WhoWhatWhy. I hope you join us next week for another Radio WhoWhatWhy podcast. I’m Jeff Schechtman.
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Related front page panorama photo credit: Adapted by WhoWhatWhy from Michael Flynn (Gage Skidmore / Flickr – CC BY-SA 2.0) and DoJ logo (DoJ / Wikimedia).
