Why did Michael Flynn resign after just 24 days as President Trump’s national security adviser?

Never before had so little certainty fueled such a political frenzy. What’s known is that Flynn spoke with Sergey Kislyak, Russia’s ambassador to the United States, on Dec. 29, 2016, the same day President Barack Obama leveled sanctions against Russia for its alleged hacking during the US presidential election campaign.

US intelligence provided a transcript of that call to the FBI, which had been investigating Russian hacking. In a breach of trust, someone in intelligence or law enforcement confirmed the call’s existence to the media, and then detailed its contents in a further leak.

Flynn initially said the call was routine and meant to set up a broader conversation between Trump and Russian President Vladimir Putin. He, Vice President Mike Pence and White House spokesman Sean Spicer subsequently and falsely denied that Flynn had discussed sanctions.

So what’s the legal issue? Some commentators suggest Flynn violated the Logan Act, but this is a red herring. While the Logan Act forbids American citizens from negotiating in their personal capacity with foreign governments in order to resolve disputes with the United States, not only is this constitutionally untested, but Flynn has precedent on his side.

Team Clinton spoke with foreign officials as they prepared to take power after Bill Clinton beat George H.W. Bush in 1992. Before and after Obama triumphed in the 2008 elections, his team reached out to Syrian President Bashar al-Assad to reassure him that Bush’s policy of isolation would end.

More generally, the basis of much-applauded Track II dialogues is to use private but politically connected citizens to float trial balloons.

Simply put, the conversation Flynn had was not illegal.

The New York Times muddied the waters further with a splashy Page 1 story in Wednesday’s paper headlined “Trump Aides Had Contact With Russian Intelligence.” But all it did was mainly reiterate the findings of its last such “scoop” in October — which found no cooperation between Trump and Russian intelligence and no sign the campaign knew of Russia’s hacking.

Flynn may have broken the law if, when questioned by the FBI, he misled them, never mind that the FBI likely overstepped its authority by questioning Flynn in the first place.

The greatest legal problem may not be Flynn’s. By acknowledging that they had intercepted Kislyak’s call, someone in the US intelligence community confirmed to the Russians that the National Security Agency had the sources or methods to defeat the Russian embassy’s countermeasures.

Enter Sally Yates. The former acting attorney general reportedly warned Team Trump that Flynn’s failure to be forthcoming to Pence left him open to blackmail. Nonsense. Adversaries blackmail American officials for financial, criminal and sexual improprieties, not because someone lied in Washington. Security-clearance background checks seek to uncover skeletons to immunize from blackmail.

When the US intelligence community uses classified information to target Americans, it raises the specter that the CIA or NSA are just as likely to blackmail and dissuades American officials from being forthcoming during background investigations.

Who in the intelligence community leaked? This remains unknown, but repetitive leaks suggest the motive was more a vendetta and desire to feed the frenzy rather than whistleblowing. This behavior, unfortunately, is not new. In 2005, W. Patrick Lang, a former senior Defense Intelligence Agency employee, bragged to The American Prospect about how some in the intelligence community leaked sensitive intelligence to undercut Bush’s re-election prospects.

“Of course they were leaking,” he said. “They told me about it at the time. They thought it was funny. They’d say things like, ‘This last thing that came out, surely people will pay attention to that. They won’t re-elect this man.’ ” By failing to investigate that episode, the CIA effectively put its own bureaucratic interests above the law.

Democrats now demand Congress investigate Flynn, but Sen. Rand Paul (R-Ky.) argues it’s not “useful to be doing investigation after investigation, particularly of your own party.”

He’s wrong. Transparency is a virtue. Former New York prosecutor Andy McCarthy is right that the FBI should release the Flynn tapes to reveal if the charges have substance. If they do not, it’s the intelligence community managers who deserve to be in the hot seat.



Michael Rubin is a resident scholar at the American Enterprise Institute.