Moscow-Gate: What Did He Know and When Did He Know It?

For any of you history buffs, this single-sentence inquiry was the meme that roiled the early ’70s when Nixon was being implicated for his involvement in the Watergate burglary of the Democratic National Committee which ultimately lead to his impeachment.  In a strange twist-of-fate, history is repeating itself with the hacking of D.N.C. email servers to pilfer sensitive emails which were later disclosed in a highly choreographed effort to throw the U.S. election in favor of Donald J. Trump.

This week, we have watched the Trump Administration suffer the first of many revelations suggesting illegal activity in the highest echelon of our government — the executive branch. And whereas General Flynn was Trump’s closest advisor on security and other matters during most of 2016, it is very likely that most of the sordid conduct now coming to light was either known to, or directed by Donald J. Trump.

It wouldn’t be surprising to learn that the Trump campaign actually coordinated with Russian hackers to release the treasure trove of DNC materials that were burglarized from the DNC email servers.  Hell, Trump literally invited hackers to release Clinton’s emails during his campaign.  Make of that what you will, but certainly the seed had been planted and the then seemingly jocular request was made. . .  Covert signaling?

Given that several of Trumps top advisors, including Paul Manafort had notoriously close ties to Russia during the long-winded campaign to overcome one of the most-qualified persons to run for the presidency ever (Hillary Clinton), the questions persist. What did Trump know, and when did he know it?

I suspect that the answers may never come. That’s because Flynn knows that any blow-back he may suffer from the suggested violations of the little known “Logan Act” (see below) which rightly prohibits private citizens from conducting foreign affairs on behalf of the United States would likely result in his pardon.  Flynn may seem a bit crazed, but he certainly understands the chain-of-command and recognizes Trump to be loyal to his soldiers.

Clearly, the purpose of the Logan Act was intended to ensure that our government speaks with one voice in matters of international relations and policy. Presuming that the telephone calls that Michael Flynn had with known Russian officials were actually recorded, they may reveal that Flynn’s contacts were intended to re-assure the Russian government that the newly-elected President would curtail Obama’s newly minted round of sanctions. If the wordage of Flynn’s conversations included the words “we” or “he” (suggesting Trump’s concurrence) in his assuring exchanges, there’s little doubt that the calls were intended to be representative of Donald Trump and the new administration-in-waiting.

Notably, Flynn had been allegedly relieved of duty years prior, during the Obama Administration for insubordination by failing to heed guidance from his superiors. Flynn says that he was pushed out for his extreme views on Islamic extremism. After his career in the Army, Flynn would later emerge in the murky world of defense contractors and free-lance advisors. Notably, he was photographed in 2015 seated aside (literally) Vladimir Putin at a banquet the later headlined. I’m guessing that this is what Trump meant when he proclaimed that he had good relations with Putin but there was no evidence that the pair had ever met. By the time Trump made that claim, Flynn was already in Trump’s pocket.

The next question would then become, will Flynn roll over on Trump to save himself from prosecution for crimes against the country? Probably not.  And most certainly, Trump will never admit to advising Flynn to exploit his connections with the Kremlin.

The Logan Act reads as follows:

18 U.S. Code § 953 – Private correspondence with foreign governments

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 any 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, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.

To any scholar of the law, the Logan Act reads as either a misdemeanor or a felony given the option to either fine or imprison a violator.

Is it a “high crime or misdemeanor” worthy of impeachment proceedings? Arguably yes. The term “high crime and misdemeanors” is said to involve perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty, conduct unbecoming, and refusal to obey a lawful order. As referenced in our Constitution, the offenses involved must involve crimes by officials or those closely attached to our government; and may also include ordinary crimes.

Trump’s exposure to impeachment is based on a conspiracy theory.  A conspiracy to violate the Logan Act and, perhaps, bribery. If Flynn were to admit to doing Trump’s bidding when he called the Russians the day after Obama sanctioned Russia for its interference with the U.S. elections, you have the necessary elements of a conspiracy to subvert U.S. law. If the call included a request that Russia forego retaliation for the sanctions, until at least Trump’s inauguration, then you have bribery as well.  I might even go out on a limb here and suggest that under the totality of the circumstances, the conduct amounts to treason.  I’m certain that both Flynn and Trump have alleged as much against Hillary Clinton for much lesser conduct.

Grounds for impeachment? Yes. But the evidence needed to convict Trump of the crime involves more than just a conviction or admission by Flynn of committing a Logan Act violation. Indeed, most likely, Flynn will follow the lead of Scooter Libby who refused to roll over on Dick Cheney in connection with the former’s revelation about the covert identity of Valerie Plame (a C.I.A. operative). Instead, Libby was convicted of perjury, false statements to investigators and obstruction of justice and later pardoned by President Bush. This is very likely the same fate that could befall Flynn who will likely protect Trump in this affair.

Indeed, much of the conclusion to this story depends on whether congressional leaders are willing to investigate, much less begin proceedings to thoroughly flesh-out this controversy. Ideally, the G.O.P. could punt and simply voice their support for the appointment of a special prosecutor and avoid the added conflicts-of-interest debate that most-assuredly would occur if newly anointed A.G., Jeff Sessions is left to call the shots going forward. More on that as we wait to see if the G.O.P. turns a blind-eye to what is an apparent example of history repeating itself.

 

Sean Erenstoft is a civil rights advocate in Los Angeles, California. He writes for the blog: www.superiorcourtblog.com and other outlets on a freelance basis.

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