A few weeks ago, the outgoing Obama administration made its displeasure well known over one or more phone calls between Russia and incoming national security adviser Michael Flynn at the same time the White House imposed sanctions over cyberattacks during the election. At first Team Trump denied a call took place at all on December 29 when Barack Obama announced the sanctions, but retreated from that and instead insisted that the sanctions weren’t part of the discussion. Now, however, the Washington Post reports that nine sources say Flynn did discuss sanctions with the Russians on that call — and Flynn has backed away from his previously categorical denials:
National security adviser Michael Flynn privately discussed U.S. sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials, current and former U.S. officials said.
Flynn’s communications with Russian Ambassador Sergey Kislyak were interpreted by some senior U.S. officials as an inappropriate and potentially illegal signal to the Kremlin that it could expect a reprieve from sanctions that were being imposed by the Obama administration in late December to punish Russia for its alleged interference in the 2016 election. …
Nine current and former officials, who were in senior positions at multiple agencies at the time of the calls, spoke on the condition of anonymity to discuss intelligence matters. All of those officials said Flynn’s references to the election-related sanctions were explicit. Two of those officials went further, saying that Flynn urged Russia not to overreact to the penalties being imposed by President Barack Obama, making clear that the two sides would be in position to review the matter after Trump was sworn in as president.
Flynn has twice publicly insisted that no discussions about sanctions took place, but yesterday his office began to qualify those denials. “[W]hile he had no recollection of discussing sanctions,” Flynn’s spokesman said late yesterday, “he couldn’t be certain that the topic never came up.” That may come as a surprise to Vice President Mike Pence, who told CBS News that he could “confirm” that the topic never came up on the call. Pence’s office responded last night that they relied on Flynn for that information.
How serious, though, is this? The Post’s report notes that while Flynn discussed the sanctions, no promises were made about the incoming administration’s actions:
Officials said this week that the FBI is continuing to examine Flynn’s communications with Kislyak. Several officials emphasized that while sanctions were discussed, they did not see evidence that Flynn had an intent to convey an explicit promise to take action after the inauguration.
The New York Times, after confirming the Post’s reporting, also adds this context:
Some officials regarded the conversation as a potential violation of the Logan Act, which prohibits private citizens from negotiating with foreign governments in disputes involving the American government, according to one current and one former American official familiar with the case.
Federal officials who have read the transcript of the call were surprised by Mr. Flynn’s comments, since he would have known that American eavesdroppers closely monitor such calls. They were even more surprised that Mr. Trump’s team publicly denied that the topics of conversation included sanctions.
The call is the latest example of how Mr. Trump’s advisers have come under scrutiny from American counterintelligence officials. The F.B.I. is also investigating Mr. Trump’s former campaign chairman, Paul Manafort; Carter Page, a businessman and former foreign policy adviser to the campaign; and Roger Stone, a longtime Republican operative.
Prosecutions in these types of cases are rare, and the law is murky, particularly around people involved in presidential transitions. The officials who had read the transcripts acknowledged that while the conversation warranted investigation, it was unlikely, by itself, to lead to charges against a sitting national security adviser.
The Logan Act is one of the most cited and least enforced laws in the US. Two years ago, the Congressional Research Service took a look at its two-century history and couldn’t find a single prosecution based on the law. Besides, it wouldn’t apply to newly elected presidents and their advisers. Like it or not, presidential transitions take place in order to bring a new president up to speed, and part of that process involves conducting diplomacy of an unofficial nature in order to promote continuity at the inauguration.
Continuity is really the issue here, though, along with what appears to be deceptive initial answers from Flynn, assuming these reports are true — and the retreat by Flynn certainly makes it look that way. Rather than promoting continuity, the appearance gives the impression that Flynn may have been undermining the policy of the then-current president. Whether one agreed with that policy or not, the then-current president had the authority to impose it, having been duly elected to that office by the American people for a full term. The new administration was coming into office in less than four weeks, plenty of time to shift that policy if they desired. Had an incoming Democratic president done this to a Republican, it would have produced a lot of angry demands for someone’s head — and arguably rightly so.