The resignation of Michael Flynn, the National Security Advisor to President Trump, has raised important legal issues. Before Donald Trump’s inauguration, Michael Flynn had discussions with Russia regarding the sanctions that President Obama levied on Russia for its interference with the 2016 election. This could result in criminal sanctions against Flynn for two reasons. First, Flynn apparently misled Trump officials, including Vice President Mike Pence, and FBI officials regarding his discussions with Russian officials. The criminal sanctions Flynn may face for this range from making false statements to federal law enforcement, which could be prosecuted under 18 U.S. Code § 1001, to perjury, under 18 U.S. Code § 1621. Second, it may have been illegal for Flynn to discuss this matter with Russian officials because he was technically only a private citizen at the time. He was not a government official because Donald Trump had not been sworn into office at the time of the discussions. The Logan Act, 18 U.S. Code § 953, prohibits correspondence between private U.S. citizens and foreign governments intended to influence foreign conduct in response to a dispute with the United States.
Flynn’s Discussion and the Law
President Obama imposed sanctions on Russia on December 29, 2016, for its interference in the U.S. Presidential election. On the same day, Flynn and the Russian ambassador, Sergey Kislyak, discussed the United States sanctions against Russia, and the next day, Russia announced that it would not impose sanctions against the United States. United States officials discovered Flynn’s discussions with Russia when the FBI recorded the conversations through a wiretap. It is unclear if the FBI was specifically recording Flynn’s conversations, but the FBI does regularly monitor Russian communications, which could explain how it obtained the recording. U.S. intelligence agencies had anticipated that Russia would impose sanctions in response to the United States sanctions, and when intelligence analysts searched for reasons why Russia did not do so, they concluded that the conversations between Flynn and the Russian ambassador, Sergey Kislyak, were an important cause.
Flynn misled Vice President Pence by saying that these discussions did not happen, which is primarily why President Trump pressured him to resign. However, lying to the Vice President in this situation is not a crime. It was what Flynn said to the FBI that presents the strongest chance of criminal sanctions. Flynn told FBI officials that he did not discuss sanctions with Russia. If Flynn was under oath and swore to tell the FBI the truth, then this would be perjury. If Flynn was not under oath, then his briefs to the FBI could be classified as providing a false statement to law enforcement. Both of these could be federal crimes given that the statement was provided to federal law enforcement. Despite perjury appearing more serious because it requires a lie under oath, both violations carry the same maximum penalty of five years in prison. However, if Flynn is convicted of perjury, a court may ensure his sentence is closer to the five year maximum than it would if he is convicted of making a false statement to law enforcement.
The prosecution of Flynn would then hinge on the context in which Flynn brought up the sanctions against Russia, the length and content of his discussions about the sanctions, and whether he knowingly lied to the FBI. If Flynn and Kislyak only brought up the sanctions in passing and the discussion was subservient to their main topic, then this would be harder to prosecute. A scenario such as this would provide credibility to Flynn’s claim that he did not remember the conversation, and thus, that he did not knowingly provide a false statement to the FBI. Knowingly providing a false statement to law enforcement is a key element to the conviction. The extent of Flynn’s discussions with Kislyak is not clear to the public. However, Sally Yates, the acting Attorney General when Trump was inaugurated, called the comments “highly significant.” She also expressed concern that Flynn was vulnerable to blackmail by Russia because Russia was aware that Flynn had lied to the Vice President and the FBI. Yates briefed the White House on January 26th, although Trump did not ask for Flynn’s resignation until February 13th.
Additionally, Michael Flynn may have lacked the authority to discuss the sanctions with the Russian government because the Logan Act prevents private citizens from interfering with foreign affairs. Trump was not inaugurated at the time of the discussions, and thus Flynn may have been prohibited from discussing these sanctions because he was still a private citizen. Despite these concerns, it is unlikely that Flynn will be prosecuted for a violation of the Logan Act. First, the Logan Act dates back to 1799 and has never been used to prosecute a citizen. Second, it is unclear whether the Logan Act prohibits the President-elect’s transition team from discussing matters with foreign governments. However, looking at the plain language, it appears that the Logan Act would apply to the President-elect and his aides. A Harvard Constitutional Law Professor, Laurence Tribe, explained that the president-elect has not taken the oath of office yet, and is not a United States official, so the Logan Act should apply to him and his aides. However, it seems unlikely that the government would prosecute Flynn under the Logan Act, given the act’s defunct status and the uncertainty about how a court would apply the act. A violation of the Logan Act carries a three-year maximum penalty in jail, compared to the five-year maximum penalty of perjury and making a false statement to law enforcement. This is surprising given that influencing foreign affairs appears more serious than lying to law enforcement.
The Trump Business Empire and the Emoluments Clause
Even without a conviction of Flynn, his actions only scratch the surface of a wider question: the Trump Administration’s relationship with Russia. Intelligence agencies unequivocally believe that Russia hacked and released emails from the Democratic National Committee to help Trump get elected. Trump has praised Putin as a leader on multiple occasions and has urged closer ties between the United States and Russia. Furthermore, the New York Times reported that intercepted communications and phone records show that Trump aides had repeated calls with Russian officials in the year leading up to the election. It is also unlikely that Flynn discussed the sanctions with Russia without Trump’s knowledge or permission.
Past dealings between Trump’s businesses and Russia could pose another kind of challenge for the Trump Administration. The President’s wealth and global business empire have created an unprecedented problem of separating presidential policies from Trump’s business interests. The President has turned over the management of his business interests to two of his sons, who are not part of his administration. However, he did not divest his interests into a blind trust, and he still has ownership shares. Because his business dealings have involved foreign investments and investors, it is possible that his policies toward foreign governments may enhance or diminish the value of these shares. Yet the Emoluments clause of the Constitution forbids federal officeholders from accepting anything with value from foreign nations. Any attempt to increase the value of his shares through his dealings as President with foreign governments would be a violation of the emoluments clause.
It is not clear exactly what Trump’s business ties to Russia have been, but there is evidence that he has received substantial capital from Russian investors, including investors who are close to the regime of Vladimir Putin. His son, Donald Trump Jr., was quoted in 2008 as saying that “Russians make up a pretty disproportionate cross-section of a lot of our assets. . . . we see a lot of money pouring in from Russia.” Additionally, Trump made millions by bringing the Miss Universe pageant to Russia in 2013 and has attempted to build property in Russia in the past. If Trump has business interests involving the Russia government, and he is using his status as President to further these interests, then he would be in violation of the emoluments clause. The answer to questions about his ties with Russia would likely be in his tax returns if the public ever gained access to them.
It is unclear whether a violation of the emoluments clause could lead to criminal sanctions against a sitting President. For example, when a grand jury found that Richard Nixon was a co-conspirator to the Watergate scandal, it did not indict him because it was not certain whether a jury could indict the current President. Many scholars believe that a sitting President cannot be indicted because the Constitution gives only Congress the power to remove the President from office, and a jail sentence imposed by the courts would effectively do that. However, the Supreme Court has the ability to determine this matter, and nobody can know if a sitting President can be indicted until it does. The Supreme Court had the ability to answer this question in United States v. Nixon, 418 U.S. 683 (1974), when it had to determine if President Nixon should be required to hand over his tapes to the special prosecutor. However, the court chose not to answer whether Nixon could be indicted as a co- conspirator because it was not relevant to whether Nixon had to turn over his tapes. Although many scholars believe that a President currently holding office cannot be indicted, a grand jury is still technically free to indict a President until the Supreme Court decides the question, which it would certainly do if an acting President is charged. Impeachment may be the only remedy if the Supreme Court decides that criminal sanctions cannot be imposed.
The Effect of These Issues for Legal Practitioners
The effect of these issues for legal practitioners may be to provide clarity on how and whether the Logan Act and Emoluments Clause can be applied. If Flynn had extensive discussions with Russia about sanctions, and a Court hears the case, practitioners may learn whether the Logan Act can apply to an official working for the president-elect. In this scenario, it would be plausible for Flynn to be convicted under the Logan Act and would set a precedent. Congress could also update the law in response to any charges or conviction of Flynn. Furthermore, if Trump’s presidential policies affect his business interests in ways that put him in serious violation of the Emoluments Clause, practitioners may learn whether a grand jury can indict a sitting President. This would set another precedent that practitioners can use to assess the actions of future Presidents.