Liberal civil libertarians are MIA
Civil liberties used to be something that largely united the left and the libertarian right. That’s yet one more thing lost in the Age of Trump.
Michael Flynn is the current exhibit. The Department of Justice recently moved to drop the charge against Flynn of lying to the FBI. The decision has been almost uniformly condemned on the left.
The disclosures made in the motion, however, should be deeply disturbing to civil libertarians of all ideological variations, and irrespective of what they think about Flynn or President Trump.
The FBI had no reason to interview Flynn. The agency had already concluded that Flynn hadn’t been in cahoots with Russian officials to affect the outcome of the 2016 election.
What was at issue was a transcript of Flynn, after the election but before Trump’s inauguration, urging the Russian ambassador to the United States, Sergey Kislyak, to cool it in response to the Obama administration booting out several Russian diplomats-cum-spies.
This theoretically violated the Logan Act, which forbids private individuals from engaging in unauthorized foreign policy activities.
There has never been a successful prosecution of a Logan Act violation, even though it’s been around for most of the Republic’s history. It’s probably unconstitutional. And applying it to the activities of an incoming administration during the interregnum period would particularly be a stretch. Flynn had already been named as Trump’s national security advisor.
By the time of the FBI interview, DOJ had already concluded that the Logan Act was a dead letter and dead end. Moreover, the FBI didn’t need to interview Flynn to know what he said. It had the verbatim transcript, from our own snooping activities.
Nevertheless, the interview took place. Flynn said that he didn’t recall telling the Russian ambassador that.
But, according to the FBI notes of the interview, also “stated it was possible that he talked to Kislyak on the issue, but if he did, he did not remember doing so.”
On the basis of that, special counsel Robert Mueller’s team went after Flynn for lying in the interview, which wasn’t conducted in furtherance of any legitimate criminal investigation. And reportedly got Flynn to agree to a plea, in exchange for not going after his son for failing to register as a foreign agent.
Flynn did so, but later wanted to withdraw his plea. After reviewing the circumstances, the Trump DOJ moved, appropriately, to have the charges dropped.
While the abdication of the defense of civil liberties on the left if it concerns someone associated with Trump is disconcerting and disappointing, the reaction of Trumpeteers also misses the point.
According to Trumpeteers, this is just evidence of the willingness of the Obama administration and the deep state to bend the rules to damage Trump.
That’s certainly part of it. But it is not the whole of it, as a recent unanimous U.S. Supreme Court decision illustrates.
During Republican Chris Christie’s tenure as governor of New Jersey, some members of his administration closed bridge lanes previously dedicated to a particular city, creating a monumental traffic jam. The purpose was to punish the city’s mayor, a Democrat, for not endorsing Christie’s reelection.
Charges were brought for violations of federal fraud laws, based on the argument that the closures somehow were the taking of government property. If something gets a buck from the federal government, which virtually all state and local programs do these days, that’s claimed to be enough for the feds to police the behavior of local officials.
The Supreme Court has regularly constrained this assertion. As Justice Elena Kagan put it in dismissing the Bridgegate charges, with such an expansive view of the federal writ, “the Federal Government could use the criminal law to enforce (its view of) integrity in broad swaths of state and local policymaking.”
That, however, is what local FBI agents and federal prosecutors routinely do. Federal overreach happens frequently here in Arizona.
Most recently, there were federal bribery charges brought against former Corporation Commissioner Gary Pierce for things wholly of local concern. A trial resulted in a hung jury. Federal prosecutors declined to refile the charges.
We rely on law enforcement officials and give them vast investigative and prosecutorial powers. While generally they are well and properly motivated, there needs to be checks and restraints.
For civil libertarians vested in those checks and restraints, vigilance shouldn’t fluctuate based on the political affiliation of the accused or the accuser. Even in the Age of Trump.