Another day of listening to former FBI Deputy Director Andrew McCabe stammer his way through a Senate hearing – not being aware of or not recalling pretty much anything that happened while he was in the job. One wonders how the man ever got through training at Quantico. While it is easy enough to use McCabe’s incompetent performance to demonstrate, once again, that the Trump-Russia conspiracy theory was complete nonsense, a more interesting question arose during the November 11 hearing. That question concerns General Michael Flynn and the Logan Act, which White House hopeful Joe Biden may already have violated.
Incoming president Donald Trump tapped Michael Flynn to serve as national security advisor in 2016. Barely had the general unpacked his desk ornaments in the White House when FBI agents showed up, in breach of protocol, to question him about conversations with then-Russian Ambassador Sergey Kislyak.
At that point, the FBI already had transcripts of the Flynn-Kislyak phone calls, which contained nothing incriminating. It seemed that the Bureau’s only objective in interviewing the general was to trap him into lying to investigators, then. Sometime later, Flynn did plead guilty to lying to FBI agents, even though those who interviewed him said they did not believe the general had deliberately misled them.
Documents declassified much later revealed that Robert Mueller’s investigators had coerced Flynn into pleading guilty, threatening to go after his son if he declined to do so.
The FBI’s Whimsical Decision-Making
Why was the FBI investigating Flynn in the first place? In the words of McCabe: “[the FBI] thought that General Flynn might be having inappropriate contacts with Russia.” It is indeed comforting to know that the world’s most powerful law enforcement agency opens investigations based on the fact that its officials “thought” someone “might” be doing something “inappropriate.”
At the time of the phone calls between Kislyak and Flynn, the latter was preparing to transition into the top White House national security job, so it is hardly surprising that he had established contact with a Russian government representative.
Having discovered no derogatory information about the general’s activities, Bureau investigators had recommended shutting down the Flynn investigation even before agents appeared, uninvited, at the White House. In response to that recommendation, a group of Obama administration officials huddled at the White House to discuss, among other things, what justification they could come up with to continue pursuing Flynn. That’s where then-Vice President Joe Biden comes in.
According to notes made by one of the meeting’s attendees, Biden suggested pinning a Logan Act violation on Flynn. The irony of this will soon be made clear.
About That Logan Act
The Logan Act, which has resulted in one indictment and no convictions since it became law in 1799, says that any United States citizen who, without authorization, “directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, in relation to any disputes or controversies with the United States… ” shall be fined or imprisoned for not more than three years – or both.
To put it bluntly, the Logan Act is, in this age, entirely pointless. Were it strictly enforced, any number of Americans – including numerous former government officials – could have been prosecuted in just the last few years. The idea that an incoming national security advisor could be in violation of it for speaking with the ambassador of a foreign country is baffling.
Indeed, incoming administrations routinely reach out to foreign powers to lay the groundwork for a new policy agenda. This brings us neatly back to Joe Biden, who has not been elected president at the time of this writing.
The 2020 presidential election results have yet to be certified – or even determined, for that matter. Neither Biden nor anyone who works for him, then, has any authority to discuss U.S. government policy with foreign officials. Yet such discussions have already taken place, it seems.
During McCabe’s Senate hearing, Republican Senator Ted Cruz referred to something former Deputy National Security Advisor Ben Rhodes – who served during the Obama administration – told MSNBC on November 10. According to Rhodes, Biden has already held conversations with foreign leaders, “talking about the agenda they are going to pursue January 20.”
Cruz challenged McCabe to say whether he believed Biden had, therefore, violated the Logan Act. The senator might just as well have used the famous quote attributed variously to William Shakespeare, Mark Twain, Oscar Wilde, and Sir Winston Churchill: “I would challenge you to a battle of wits, but I see you are unarmed.” The former FBI number two was clearly at a loss and simply refused to answer the question.
It is worth noting that Cruz himself went on to express his belief that Biden had not violated the Logan Act, since the law itself was unconstitutional. His point was well-made, though. Flynn, who had already been named national security advisor to an incoming president, had supposedly violated the act by speaking with the Russian ambassador. Biden had surely violated it, then, by speaking with foreign leaders about U.S. policy before he has even won the 2020 election.
McCabe was an abysmally incompetent FBI official. Perhaps Joe Biden should thank his lucky stars that the disgraced deputy director is not an official spokesman for his campaign.
Read more from Graham J. Noble.