Jonathan Turley:
“…The problem, of course, is that there remained the inconvenient absence of any crime. Indeed, we now know there never was any credible evidence of collusion with the Russians by Trump campaign officials. New transcripts show dozens of officials confirming they never saw evidence of collusion. That is when the FBI and Justice Department leadership collectively reached for the last refuge of the prosecutorial scoundrel: the Logan Act.
When Strzok overruled the career prosecutors and investigators to keep open the investigation, he immediately raised the Logan Act as a possible way to charge Flynn. We previously learned that former acting Attorney General Sally Yates also raised the Logan Act as a possible charge, and we know that McCabe pushed the Logan Act in the absence of any other crime. (McCabe was later found to have lied to investigators but, unlike Flynn, was never charged).
The new material shows that former FBI Director James Comey also raised the Logan Act, with President Obama, in discussing FBI 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 states, “Yates had no idea what the president was talking about, but figured it out based on the conversation. Yates recalled Comey mentioning the Logan Act.”
Keep in mind that the use of the Logan Act against the incoming national security adviser would have been not only patently unconstitutional but positively ludicrous. There was nothing illegal in Flynn responding to Russian diplomats upset about sanctions recently imposed against Russia, just days before the start of the Trump administration. Trump himself stated publicly that he wanted to reframe relations with Russia, including sanctions. The transcripts show Flynn encouraging the Russians not to retaliate and saying the administration would reexamine the relationship.
Consider the absurdity of using this law against the incoming adviser for speaking with foreign diplomats on the eve of the new administration. The use of the Logan Act in that instance is just slightly better than an Alien and Sedition Acts prosecution against WikiLeaks. We now know there never was evidence of collusion by Flynn or anyone in the Trump campaign. By December, career investigators in the FBI Washington field office wanted to stop investigating Flynn. Then, in January, every one of the major players at the FBI and the Justice Department justified further investigation under the Logan Act. Thus, the only crime being pushed was an unconstitutional act that has never been used successfully in a prosecution.
It turned out that they would not need it, however. Although FBI investigators said they did not believe Flynn intentionally lied (and noted that Flynn understood his conversation with Russian officials was monitored and presumably transcripted), that nevertheless was the charge former special counsel Robert Mueller ultimately used. Flynn fought the charges but pleaded guilty after Mueller virtually bankrupted him and 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 enactment of the Logan Act, there must be punishment for those with the “temerity and impertinence” to challenge those in power.
So 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 the apparent theory that an unconstitutional crime is still better than no crime at all…”