Although the Obama administration weaponized the Logan Act to get Gen. Michael Flynn fired, it never intended to actually use the antiquated law to prosecute him. In fact, it has been the prosecution instigated by former Special Counsel Robert Mueller that uncovered the full extent of the Obama administration’s misdeeds.
The Logan Act is a law from 1799 dictating that it is illegal for private citizens to negotiate with a foreign power in a way that contradicts the current administration’s policy. The Logan Act has been used only twice since then for prosecution, the last time in 1852, and is widely considered by legal experts to be unconstitutional.
Obama Provided Leadership
Peter Strzok’s newly released handwritten notes shed more light on the meeting President Barack Obama held in the Oval Office 15 days before Trump’s inauguration. This meeting has become infamous because of Susan Rice’s bizarre decision to email herself an account of it on her last day as Obama’s national security adviser.
Present at the meeting were Vice President Joe Biden, FBI Director James Comey, Deputy Attorney General Sally Yates, and Rice. Sometime after the meeting, Comey told FBI agent Strzok about it, and now we have Strzok’s notes from that conversation.
Rice’s email says, “President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the intelligence and law enforcement communities ‘by the book.’” These words, stated three times according to Rice, are conspicuously missing from Strzok’s notes of the meeting. Further, Comey’s subsequent decision not to proceed “by the book,” or within the bounds of law and procedure, demonstrate that either Comey didn’t take Obama’s instructions seriously or Obama never gave those instructions in the first place.
According to Strzok’s notes, Obama said, “Make sure you look at things plus have the right people on it.” Obama also asked, “Is there anything I shouldn’t be telling transition team?” Comey replied, “[Sergey] Kislyak calls but appear legit.” Although Comey claimed the calls with the Russian ambassador appeared legitimate, he proceeded to use the Logan Act as pretext for interviewing Flynn.
According to Strzok’s notes, it was Biden who brought up the Logan Act in the Oval Office meeting. It also turns out Biden was one of 16 Obama officials who participated in the mass unmasking of Flynn’s name. The more information that comes out, the more it looks like targeting Flynn was a coordinated group effort with Obama at the helm.
Yates Wanted to Get Flynn Fired
Documents released in May made clear that Yates was far more interested in getting Flynn fired than prosecuting him. The special counsel interview with Yates revealed that the first time she heard about Flynn’s phone call with Kislyak was from Obama. It also states that this is where she first heard that Flynn may have broken the Logan Act, although she claims it was Comey, not Biden, who mentioned it in the meeting.
While it is clear that Yates never intended to use the Logan Act to prosecute Flynn, it is also clear that she tried to use it to get him fired. Yates noted in her interview with the special counsel’s office that after she found out about the call between Flynn and Kislyak, she spoke with Assistant Acting Attorney General Mary McCord. She said they felt that although Flynn’s conversation was a technical violation of the Logan Act, they didn’t believe it would work with a jury or be a good use of Department of Justice (DOJ) power.
Yates had two meetings with then-White House counsel Don McGahn about the Flynn-Kislyak call. During her first meeting, Yates used the Logan Act as her excuse for informing the White House that the FBI and DOJ had proof Flynn was misrepresenting his call with Kislyak. McGahn, seemingly not knowing what the Logan Act was, took the charge seriously and questioned whether Flynn was under criminal investigation.
McGahn’s attitude in their second meeting changed. According to Yates, it was clear McGahn had researched the Logan Act. He presumably discovered it wouldn’t be a tenable legal strategy. “The DOJ isn’t going to prosecute the Logan Act,” he scoffed. Yates now had to backtrack. It would make her and her department look ridiculous to defend using the Logan Act.
According to her testimony before an executive session of the House’s Permanent Select Committee on Intelligence, Yates told McGahn she informed the White House so they could act. “It would be unfair to ask you to sit on your hands,” she said. She repeatedly told McGahn not to worry about any investigation that might be going on into Flynn. Instead she encouraged him to be free to “act.” She told Congress she didn’t want McGahn using an investigation as an excuse not to move on the Flynn situation. It is clear Yates’ intention was to get Flynn fired.
It is evident that Yates’ DOJ never meant to prosecute Flynn under the Logan Act because it didn’t do so, not while Yates was attorney general nor once she was fired. The DOJ let the matter go once Flynn was fired. In fact, in a DOJ memo, McCord said a Logan Act prosecution seemed like a stretch. Yet it was a supposed violation of this law that served as the FBI’s excuse to interview Flynn.
James Comey Uses the Logan Act to Interview Flynn
According to Yates, Comey wanted to prosecute Flynn under the Logan Act. Yates recalled in her special counsel interview that Comey brought up the Logan Act in the Oval Office meeting, and it was the FBI that seemed more eager to prosecute Flynn.
Despite Yates’ claim, it seems more likely that Comey didn’t want to prosecute Flynn under the Logan Act but instead wanted to use the threat of the Logan Act as a pretext for interviewing him, an interview he likely hoped would either lead to dirt on Donald Trump or catch Flynn in a lie.
The FBI had transcripts of Flynn’s call. Its goal wasn’t to get information from Flynn, but to trap him in a lie so he would be fired or charged. This is the definition of a perjury trap. A handwritten note from FBI counterintelligence head Bill Priestap reads, “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?” Priestap was one of many officials nervous about interviewing Flynn outside proper procedures. So much for “by the book.”
Strzok and Joe Pientka, the two agents who interviewed Flynn, did not think he had knowingly lied based on his behavior. Comey has been cited as saying that whether Flynn lied was a close call, but it would have been beyond foolish for Flynn to lie. He himself stated he was sure the FBI knew what was in the call. “You listen to everything they say,” Flynn had said.
FBI Was Conducting a Fake Investigation
The Justice Department’s motion to dismiss argued that Flynn’s interview with the FBI was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn.”
In a CBS interview, Attorney General William Barr argued there was no basis for a counterintelligence investigation against Flynn, and thus even if Flynn did lie, it would not be a material lie. Barr explained that newly released evidence demonstrates that the sole reason for investigating Flynn was to trap him in a lie about his call with Kislyak.
The FBI had determined on Jan. 4, 2017, 20 days prior to the interview, to close the investigation into Flynn. The FBI’s closing communication stated the investigation yielded an “absence of derogatory information” on Crossfire Razor (code name for Flynn and the investigation) and that he was “no longer a viable candidate as part of the larger CROSSFIRE HURRICANE umbrella case.” It further states, “A review of logical … databases did not yield any information on which to predicate further investigative efforts.”
If Mueller’s team of aggressive prosecutors had not decided to prosecute Flynn in a futile attempt to save their investigation, the Obama administration’s targeted campaign to sabotage the Trump presidency would have faded away into oblivion. Flynn has had his life upended for the past four years because one cadre of elites couldn’t let go of power, and the other had to justify spending $25 million of taxpayer money after realizing its investigation was a sham.