We learned last week that one of President Donald Trump’s close associates lied to the FBI about his contacts with the Russian ambassador, when he was being questioned as part of the investigation into Russian interference with the 2016 presidential election.
Does that mean impeachment is around the corner?
It depends on whether Trump’s former national security adviser, Michael Flynn, turns out to be another James McCord or another Scooter Libby.
McCord was one of the Watergate burglars, whose testimony — offered in exchange for a lighter sentence — implicated senior White House officials in a conspiracy to spy on the Democratic National Committee and, subsequently, to obstruct the investigation into their criminal conduct. His cooperation materially advanced the inquiry into the Watergate scandal, which led ultimately to President Richard Nixon’s resignation in disgrace.
Libby was an assistant to Vice President Dick Cheney, and he was convicted of lying to the FBI in connection with its investigation into the “outing” of Valerie Plame as a covert operative for the CIA. At the time, it was thought that Libby might somehow implicate the vice president or even the president in wrongful activity that might lead to impeachment or resignation. In fact, Libby’s conviction led nowhere. No one was ever charged with disclosing Plame’s covert status.
The case that Flynn’s conviction may, like McCord’s, lead to the president’s prosecution or impeachment goes like this:
Flynn lied about two conversations with the Russian ambassador that took place in the waning days of the Obama administration. In general, there is nothing unusual about communications between foreign officials and senior members of a president-elect’s transition team.
But Flynn was not simply getting acquainted with Ambassador Sergey Kislyak. He was trying to influence Russian policy, possibly at the direction of Trump himself. In one case, Flynn was asking the Russians not to retaliate too harshly in response to American sanctions, instituted by President Barack Obama, to punish the Russians for their election meddling. In the other, he unsuccessfully sought Russian help to defeat a U.N. Security Council resolution regarding Israeli settlements that the Obama administration wanted to see passed.
In both cases, Flynn — and possibly Trump himself — was violating the Logan Act, a two-centuries’ old ban on the conduct of U.S. foreign policy by private citizens. Administration critics will argue further that Trump obstructed justice when he fired FBI Director James Comey, preventing him from investigating Flynn and other administration officials.
Moreover, if Trump or anyone on his team actually conspired with the Russians, either to hack the Democratic National Committee computer system or to sway the election in some other way, Flynn may know about it, and his guilty plea to this relatively minor charge may be a sign that he is about to start implicating the president in a conspiracy to steal the election. In that case, impeachment would indeed be imminent.
On the other hand, Flynn may turn out to be Trump’s Scooter Libby.
In the whole history of our republic, no one has ever been convicted of violating the Logan Act, which is widely thought to be an unconstitutional dead letter. And though it is unseemly for an incoming president-elect to seek to thwart the foreign policy of his lame-duck predecessor, it is not unprecedented. And if you are appalled by the Trump team’s behavior, ask yourself this: will you be equally willing to condemn President-elect Kamala Harris for starting to undo Trump’s foreign policy, beginning on Nov. 4, 2020?
As to the possible obstruction of justice charge stemming from the firing of Comey, this has always been about the politics of impeachment rather than the black letter of the law. The president plainly has the constitutional authority to fire the FBI director, for any reason or none at all. It cannot be illegal for the president to exercise his constitutionally-granted powers.
On this view, Flynn is just like Libby: convicted for lying to the FBI in the course of an investigation that leads to no substantive charges at all.
Who will Flynn turn out to be — McCord or Libby?
That depends on whether candidate Trump really was Nixon or just a blustering reality TV star with a gift for attracting attention and driving his opponents to madness.
Joseph Reisert is the Harriet S. Wiswell and George C. Wiswell Jr. Associate Professor of American Constitutional Law at Colby College in Waterville.
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