Logan Act is the last refuge for the American prosecutorial scoundrel

Samuel Johnson famously declared that “patriotism is the last refuge of the scoundrel.” For prosecutors that refuge is the Logan Act. Among the thousands of pages released from the Michael Flynn case and the House Intelligence Committee investigation is the prominent appearance of the Logan Act in key discussions. The law is viewed as an unconstitutional law that, if ever actually used, would gut the First Amendment. Yet the record now shows the Logan Act became the last refuge for Justice Department officials desperately trying to find any kind of crime to use against Flynn, the former White House national security adviser to President Trump.

I have written about the Logan Act for decades and called for its repeal. It is not really that the law was a real threat to individuals since it has never been used successfully against any citizen since its enactment in 1799. It is a law that contradicts the defining values of this nation. It is a product of its time as John Adams was never one to suffer opponents gladly.

At the time, Adams favored and signed a treaty with Great Britain that led to the Quasi War with France. Supporters of Thomas Jefferson sided with France. One of them, George Logan of Philadelphia, traveled to Paris to end the hostility. Adams was irate over what he called the “temerity and impertinence” of individuals like Logan. He persuaded Congress to pass the unconstitutional law to make it a crime to have “correspondence or intercourse with any foreign government or any officer or agent” about disagreements. That Congress passed the infamous Alien and Sedition Acts used to arrest the opponents of Adams, including journalists.

The only reason the Logan Act remains on the books is that it is treated as a harmless relic. Many of us in the free speech community objected that it continues to be a danger and remains a statutory monstrosity from one of the darkest periods of American law. Even people who dismiss the Logan Act as nothing generally agree that it cannot be used constitutionally.

That brings us to the recently released documents. We know that in late 2016, investigators ended the multiagency probe of Flynn, code named Crossfire Razor, and found no evidence of any crime, so they informed both Justice Department and FBI leaders that they wanted to close the investigation over failure to find any “derogatory information.” The FBI Washington field office concluded that Flynn was “no longer a viable candidate as part of the larger Crossfire Hurricane umbrella case.”

We also know that former FBI deputy director Andrew McCabe decided that the absence of a crime would not be allowed to terminate the case. FBI agent Peter Strzok then instructed the FBI case manager to keep the investigation open, then sent a celebratory text to FBI lawyer Lisa Page, who responded that it was “amazing” that the case was still ongoing.

But the problem is there remained the inconvenient absence of any crime. Indeed, we know that there was never any credible evidence of collusion with the Russians by Trump campaign officials. Transcripts show dozens of officials confirming that they never saw evidence of collusion. Justice Department and FBI leaders then reached for their last refuge. As Strzok overruled career officials to keep the case open, he raised the Logan Act as a possible way to charge Flynn. We know that former Acting Attorney General Sally Yates also raised the Logan Act for the case, and we know that McCabe pushed the Logan Act with the absence of other crimes.

The material shows that former FBI director James Comey had also raised the Logan Act, with President Obama, in discussing surveillance of Flynn. In one meeting, Justice Department officials were surprised that Obama already knew of the surveillance even though Yates was not aware of the facts. One document reveals that Yates “had no idea what the president was talking about” but she “figured it out based on the conversation.”

Keep in mind that using the Logan Act against the incoming White House national security adviser would be not only patently unconstitutional but also positively ludicrous. There was nothing illegal in Flynn responding to diplomats upset about sanctions imposed on Russia days before the new administration. Trump himself stated that he wanted to reframe relations with Russia. The transcripts show Flynn encouraging the diplomats not to retaliate and saying that the administration would look at the situation.

Consider the absurdity of using this law against Flynn for speaking with foreign diplomats on the eve of the new administration. Using the Logan Act in that instance is just slightly better than an Alien and Sedition Acts prosecution against Wikileaks. There was never evidence of collusion by Flynn or anyone in the Trump campaign. Officials in the FBI Washington field office wanted to stop investigating Flynn. Then the major players at the Justice Department and the FBI justified further investigation under the Logan Act. The crime being pushed was under this unconstitutional law that has never been used successfully in a prosecution in history.

But it turned out that they would not need it. Though FBI investigators said they did not believe Flynn intentionally lied, and noted that he understood his conversation with the Russian officials was monitored and presumably recorded, that was the charge that former special counsel Robert Mueller ultimately used. Flynn fought the charge but pleaded guilty after the case had virtually bankrupted him and Mueller threatened to charge his son.

Perhaps it is fitting that these Obama administration officials turned to the Logan Act. Obama, who had dismissed Flynn from another post, opposed his appointment as national security adviser. It did not matter if there was no evidence against Flynn. As President Adams declared in calling for the passage of the Logan Act, there must be punishment for those individuals with the “temerity and impertinence” to challenge the leaders in power.

After no evidence of collusion or a crime by Flynn was found by the end of 2016, Strzok, McCabe, Comey, Yates, and perhaps even Obama retreated to that last refuge of the prosecutorial scoundrel, the Logan Act, under a theory that an unconstitutional crime is still better than no crime at all.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.