Although the Trump administration and congressional Republican leaders surely hope that the resignation of National Security Adviser Michael Flynn on Tuesday will put an end to controversy about connections between Russia and President Trump’s circle, that wish will probably not come true.
First of all, Flynn himself is likely already under FBI investigation and may be in legal jeopardy.
In late December, the Obama administration imposed sanctions on Russia for interfering with the presidential election to boost Trump while he was running for president. Putin did not retaliate for the sanctions, breaking with precedent and shocking the Obama White House and U.S. diplomats and intelligence professionals. An explanation soon emerged. Flynn, still a private citizen but tapped to be Trump’s national security adviser, had had multiple communications with the Russian ambassador to the United States about the sanctions the day they were imposed.
The speculation is that Flynn may have promised that the incoming Trump administration would go easy on Russia, and so hinted that an aggressive response by Putin would be unnecessary. Whatever was actually said, Flynn then lied to Vice President Mike Pence and others about having discussed sanctions with the ambassador, and Trump spokespeople repeated those lies publicly.
But U.S. counter-intelligence wiretapping of the Russian ambassador had recorded the communications involving Flynn, and sanctions were very much a topic of conversation. Soon after the inauguration, the Department of Justice informed Trump and the White House counsel about the recordings, saying that Flynn’s false denial that they occurred opened him up to Russian blackmail. Trump did nothing publicly until the above details were leaked to the press. And then Flynn was abruptly gone.
It has been reported that Flynn was interviewed by the FBI in late January. But his individual status is unclear. He may have been considered a mere witness in a counter-intelligence investigation designed to simply gather information about contacts between Russia and the Trump team. Or he may have been questioned as part of a criminal investigation. In that case, he may be a witness (meaning an informational interview only), a subject (meaning he was interviewed because his conduct was within the scope of the criminal investigation, and he might be suspected of wrongdoing), or the target of the investigation (meaning that the interview was designed to gather additional information to further a criminal prosecution). There is obviously a world of difference between these different possibilities.
There has been much talk that Flynn may have violated the Logan Act by talking about sanctions with the Russian ambassador. The Logan Act is an obscure 1799 statute that makes it a crime for a U.S. citizen, without authorization from the U.S. government, to communicate with a foreign government “with intent to influence the measures or conduct” of that foreign government. It seems that Flynn’s conduct, as reported in the press, likely falls within the terms of this criminal statute. The problem is that modern constitutional doctrines of free speech and due process almost certainly do not allow a prosecution under this statute, of Flynn or anyone else.
That may not be the only applicable criminal statute, however. There have been news reports that Flynn misled the FBI when he was asked about his contacts with the Russian ambassador. If so, that is likely a federal crime, and one that is prosecuted all the time without constitutional controversy. Not surprisingly, federal law enforcement and prosecutors hate being lied to. Flynn should be worried.
There could be other problems for Flynn, or other Trump aides with ties to the Russian government. During the transition, Trump and some of his aides including Flynn began to receive classified information about national security matters, to prepare them to assume office. If any of this information--or similar information received once Flynn took office as National Security Adviser--was passed on to Russian government contacts or others who were unauthorized to receive it, it would likely violate the Espionage Act, a criminal statute.
Attorney General Jeff Sessions has the authority to quash any particular investigative steps that FBI agents or prosecutors might want to take with regard to Flynn. Maintaining both an appearance and reality of independence in a politically-fraught situation, like this one involving Flynn, is a dicey proposition for any attorney general. The attorney general is an at-will employee of the president, and can be fired by the president at any time for any reason. In addition, Sessions was an early backer of Trump and a trusted campaign surrogate and adviser. He surely got to know Flynn during the campaign too.
Even if a criminal investigation does not ensnare Flynn, there are other reasons that the Trump-Russia scandals are not going away. Despite tepid support from the Republican leadership in Congress, some Republican senators are initiating investigations of the election hacking, contacts between Russian intelligence and Trump campaign advisors prior to the election, and perhaps other Russian-related matters. Republican Senator Lindsey Graham of South Carolina and Democrat Sheldon Whitehouse of Rhode Island, the chair and ranking minority member of the Senate Judiciary Subcommittee on Crime and Terrorism, have launched an investigation. So too have Republican senator Richard Burr of North Carolina and Democratic Senator Mark Warner of Virginia, the chair and ranking member, respectively, of the Senate Intelligence Committee.
Some on the Democratic side have called for an independent special counsel or special commission to investigate. These are two different ideas, and would have very different implications.
A special commission, if it occurred, would likely be a congressionally-created, bipartisan entity, like the 9/11 Commission that was created following the terrorist attacks in 2001. Congress might or might not give such a commission legal power to compel testimony and documents. The 9/11 Commission did have subpoena power. The personnel and powers of such a commission, along with the level of cooperation it received from the FBI and other government agencies, would determine how effective it would be. But ultimately, even an aggressive and effective commission can only report and recommend.
A special prosecutor is a very different beast. In the wake of Watergate in the 1970s, Congress passed an independent counsel statute, designed to allow an independent person, outside the usual Department of Justice chain of command, to investigate alleged wrongdoing in the upper reaches of the executive branch. Attorneys general are often close confidantes and allies of the president who appointed them. A special, independent prosecutor is meant to avoid the appearance or actuality of an attorney general using his or her powers over the FBI and federal prosecutors to shield a friendly president or other senior executive branch colleagues from investigation.
Even though Congress allowed the independent counsel statute to lapse in 1999 in the wake of the Ken Starr-Bill Clinton imbroglio, the attorney general still has authority to appoint an independent, special prosecutor. When White House advisers Karl Rove and Scooter Libby were caught up in the investigation about disclosure of Valerie Plame’s CIA status, Attorney General John Ashcroft recused himself--after much criticism for failure to do so, since he was close to Rove and close to Vice President Dick Cheney, Libby’s boss. Deputy Attorney General James Comey (today, the director of the FBI) took over control of the Plame investigation, and in 2003 appointed a special, independent prosecutor to lead it. Libby ended up being convicted of obstruction of justice and lying about the Plame affair.
If Sessions bows to pressure and appoints an independent prosecutor, or recuses himself in favor of a deputy who then does so, the legal woes for Flynn--and potentially other people in the White House or Trump campaign--are just beginning. Such a prosecutor would have the enormous legal powers to gather information and compel testimony that all federal prosecutorial offices possess. There are two kinds of special prosecutors--one governed by DOJ regulations, who can be overruled by the attorney general, and one who is delegated all of the authority that the attorney general has, and so is answerable to no one in the executive branch. The Plame prosecutor was of the latter kind. In practice, even the former kind of special prosecutor would have very substantial if not total independence.
A final reason that the Russia-Trump story is unlikely to go away with Flynn’s resignation is that key segments of the intelligence and national security bureaucracy appear to actively distrust the Trump people, and have been leaking damaging information to the press. This leaking is likely to continue until such officials feel that responsible people are in charge of the nation’s security--people without favorable views of and back channel ties to the malevolent Putin regime. Rather than seeking a truce with this “deep state,” there are signs that Trump may be going to war with it. His allies have been making comments about criminal investigation of the Flynn leakers, and there is talk of appointing a hedge fund billionaire with no national security experience--Stephen A. Feinberg, a co-founder of Cerberus Capital Management--to a White House job, tasked with whipping the intelligence community to heel. Most likely, Flynn’s resignation is just the beginning of a protracted crisis about ties between Russia and Trump.
Andrew Kent is a professor of law at Fordham University School of Law in New York City.
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