Michael Flynn

  • December 11, 2017
    Guest Post

    by Andrew Wright, Associate Professor, Savannah Law School

    Michael Flynn is cooperating with Special Counsel Robert Mueller’s investigation. The plea agreement requires that Flynn “shall cooperate fully, truthfully, completely, and forthrightly with this Office and other Federal, state, and local law enforcement authorities identified by this Office.” Flynn’s statement of the offense ominously announces that “[t]hese facts do not constitute all of the facts known to the parties concerning the charged offense.” There is some debate about whether this agreement signals that Flynn has significant incriminating information about senior-most White House advisors, or President Trump himself. Only Flynn, Mueller, and the others whom Flynn might implicate on matters related to the investigation are in a position to know the quality of his cooperation.

    But what if President Trump started using his pardon power to end the Russia investigation? What would be the effect, if any, if President Trump pardoned Flynn now? What about pardons of others that might be implicated by Flynn in his cooperation? Pardons raise a number of important questions after Flynn’s plea.

  • May 24, 2017
    Guest Post

    by Dan Froomkin and Caroline Fredrickson

    Robert Mueller's appointment as a special counsel to oversee the Justice Department's investigation of Russia's interference in the 2016 presidential election does not in any way preclude muscular congressional oversight into the matter.

    Nor does it give congressional witnesses carte blanche to duck questions they do not feel like answering in public.

    Within hours of the announcement about Mueller, Republican members of Congress started using his leadership of the investigation as an excuse to stand down.

    “You’ve got a special counsel who has prosecutorial powers now, and I think we in Congress have to be very careful not to interfere," Sen. Lindsey Graham (R-S.C.) told reporters on Thursday. "Public access to this is probably going to be very limited now. It’s going to really limit what the public will know about this.”

    And one of several congressional witnesses-in-waiting cited Mueller as an excuse not to answer even basic questions from his ostensible congressional overseers. Deputy Attorney General Rod Rosenstein, who played a highly controversial role in Comey's firing, briefed Senate and House members last week -- in a closed session, despite the lack of any discussion of classified material.

    “Basically any question of any substance, it was, ‘I can’t comment because it may be the subject of an investigation by Mueller,’ ” Sen. Jeff Merkley (D-Ore.) told the New York Times.

    Rep. Lloyd Doggett (D-Teaxs) said in a statement that "the most frequent answer I heard to questions from members of either party was 'I cannot answer that question.' He declined to answer any question concerning his personal conduct, motivation, or the circumstances of the firing of FBI Director James Comey, indicating that even this could be within the scope of the Mueller investigation."

  • February 14, 2017
    Guest Post

    *This piece originally appeared on Just Security.

    by Ryan Goodman, Co-Editor-In-Chief of Just Security and Anne and Joel Ehrenkranz Professor of Law at New York University School of Law and Steve Vladeck, Co-Editor-In-Chief of Just Security and Professor at The University of Texas School of Law

    The news from overnight that National Security Adviser Michael Flynn has resigned over his inappropriate pre-Inauguration dealings with Russia has also reinvigorated the debate over whether he can and should be prosecuted for violating the Logan Act, 18 U.S.C. § 953. Although Steve has previously suggested that the Logan Act could not be used to prosecute members of the presidential transition team (if it could be used at all, given that it has been moribund for over 200 years and is, in any event, a content-based restriction on speech), an exchange over e-mail between us about Steve’s prior post led to this Q&A that more fully fleshes out those arguments:

    Ryan to Steve: You wrote that the spirit of the Logan Act, if not its letter, would not apply to members of an incoming presidential transition team. But the White House appears to be saying that Flynn was going rogue on those phone calls, that he never cleared it with them to speak about the sanctions, and that he lied to them about the content of the calls afterwards. If that is true, would it not throw out the window an analysis that says a person acting in their capacity as a presidential transition team member does not come under the Logan Act? Flynn would have been acting not only “without authority of the United States,” but also without authority of the presidential transition team.

    Steve to Ryan: It might. But the absence of any Logan Act prosecutions means that there has been no judicial analysis of what it means to act “without the authority of the United States” in this context. For example, it is not clear to me that a serving Cabinet officer—who we all agree would ordinarily exercise the “authority of the United States”—would violate § 953 if he engaged in unauthorized communication with a foreign government with the “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.” The question is whether “authority of the United States” in this case literally requires the president’s (express or tacit) approval of the content of the communication (which, contra another post of mine, would likely mean that members of Congress would often act without such authority), or whether it just means under color of U.S. authority. I think the better reading of the Act’s text is the latter—but that is especially true if the former reading would potentially raise some of the constitutional concerns to which I have previously alluded.