The Indian Express (Delhi Edition)
When Flynn dialled Kislyak: was it felony or just a bad call?
Prosecution, if any, would have to be based on a 1799 federal US law that has been rarely used and has never produced a conviction
FORMER US National Security Adviser Michael Flynn’s conversations with Russia’s ambassador to the US Sergey Kislyak has roiled the White House and put the spotlight on a little-enforced law prohibiting US citizens from trying to influence a foreign government in disputes with the United States.
Flynn resigned after conceding that he may have discussed US sanctions on Russia in phone calls with Kislyak while President Barack Obama was still in office. Those conversations may have violated the Logan Act, which aims to bar private citizens from conducting diplomacy, though White House spokesman Sean Spicer said Tuesday that no legal issues arose.
It is true that the Act has been so rarely invoked that legal experts say it may no longer be valid. Also, no one has been found guilty of violating it in its more than 200-year history. A look at the Act and whether conversations such as those carried out by Flynn could lead to charges.
What is the Logan Act?
Lawmakers passed the Act in 1799 after George Logan, a friend of then Vice-president Thomas Jefferson, made a private visit to France in an attempt to ease tensions after the French Revolution. That trip was sharply criticised in the US as an inappropriate interference in affairs between the two countries, prompting the passage of the law.
Has it ever been used before?
There appear to have been very few indictments, and no prosecutions, under the Act. That would make potential violations even harder to prove in court, legal experts say. The one known indictment came in 1803 after a Kentucky farmer wrote a newspaper article advocating for a separate country within the US that would ally with France. But no prosecution followed.
“It really is an anachronism, written at a time when Congress thought it had the power to criminalise this kind of ill-conceived, but not illegal, speech,” Stephen Vladeck, a professor at the University of Texas School of Law, said.
Over the years, however, politicians and public figures have been accused of violating the Logan Act, often by political rivals. The Rev. Jesse Jackson’s diplomatic activities in several countries in the 1980s, including trips to Cuba to negotiate the release of prisoners, raised questions about whether he violated the act. So did former NBA star Dennis Rodman’s travels to North Korea to meet with dictator Kim Jong-un in 2014. Another allegation involved a letter sent by 47 Republican senators to Iran’s leaders in 2015, warning them against making a nuclear deal with President Obama.
Because none of those cases yielded criminal charges, a court could find the Logan Act no longer valid under a legal doctrine that says statutes become unenforceable if they are never used.
Okay, but these technicalities aside, if Flynn discussed sanctions, didn’t he break the law?
Discussing Obama’s economic sanctions against Russia (after US intelligence determined that Moscow had interfered with the US election process) with the Russian envoy during the presidential transition could have been a violation of the Act. But that does not mean it will result in charges against Flynn. Prosecutors, for questions of resources or interpretations of the law, sometimes opt not to pursue criminal cases even when presented with a clear violation. And when it comes to the Logan Act, they would have to overcome a difficult defence that Flynn’s phone calls were protected free speech. They would also have to prove Flynn was actually acting without the authority of the United States, Vladeck said.
A US official told The Associated Press on Tuesday that the FBI had interviewed Flynn about his actions with the ambassador. But the content of the conversations remains unclear. If investigators determine Flynn lied to them, he would have opened himself up to a possible felony prosecution for making false statements.
In the end, however, any threats to prosecute under the Logan Act appears to be “an increasingly empty gesture”, Vladeck said. “It’s a fun game for commentators to play. It’s a way of turning what looks like a really bad move into a potentially illegal one.”
SADIE GURMAN, THE AP