Legal experts said it is highly unlikely Michael Flynn would ever be prosecuted for violating the Logan Act, a 218-year-old criminal law prohibiting private individuals from embarking on negotiations with foreign governments. | Getty Flynn’s statements to FBI under scrutiny

Just-ousted National Security Adviser Mike Flynn could be in legal trouble if his statements to the FBI about his contacts with Russia’s ambassador to the U.S. turn out to be inaccurate, lawyers said Tuesday.

While Flynn has acknowledged “inadvertently” giving “incomplete information” to Vice President-elect Mike Pence, he has been less clear about what account of the episode he gave to the FBI.


In an interview shortly before Flynn was asked to resign Monday, the retired general said nothing about his late December contact with Russian Ambassador Sergei Kislyak verged into the improper.

“If I did, believe me, the FBI would be down my throat, my clearances would be pulled. There were no lines crossed,” Flynn told the Daily Caller.

Legal experts said it is highly unlikely Flynn would ever be prosecuted for violating the Logan Act, a 218-year-old criminal law prohibiting private individuals from embarking on negotiations with foreign governments. No one has ever faced such a charge.

However, Flynn did have a legal obligation to be truthful with the FBI about any contacts with the Russians.

“He is at serious risk of being prosecuted if he told the FBI what he told the Vice President,” said former Obama White House ethics lawyer Norm Eisen, now with Citizens for Responsibility and Ethics in Washington.

“Just because you’re not going to charge him with the Logan Act, there’s certainly nothing to preclude you from going forward under 1001,” said former federal prosecutor Peter Zeidenberg, referring to a U.S. criminal code felony provision prohibiting making knowing and willful false statements “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.”

A genuinely faulty memory is a valid defense to a false statement charge, but Zeidenberg said it’s hard to see how Flynn could have been mistaken under these circumstances.

“How did his memory go from I didn’t talk to the Russians about sanctions to I don’t remember if I talked to the Russians about the sanctions,” the ex-prosecutor said. “These interview are very close in time to the event, not a year and a half later….It’s not the type of thing that you would forget.”

White House press secretary Sean Spicer said Tuesday that White House counsel Don McGahn explored Flynn’s actions and concluded there was no law broken.

“We had to review whether there was a legal issue, which the White House Counsel concluded there was not,” said Spicer, carefully avoiding any mention of whether McGahn looked at whether any crimes may have been committed.

Of course, any decision about criminal charges is ultimately made by the Justice Department, not the White House. Spicer said that when acting Attorney General Sally Yates visited McGahn on Jan. 26, she was simply alerting the White House to intelligence about Flynn, not disclosing any investigation.

“She said, we wanted to give you a head's up that there may be information, okay? She could not confirm there was an investigation,” Spicer said.

A lawyer who handles security clearance background check disputes for government employees, Mark Zaid, said most misstatements in that context don’t lead to a criminal charge.

“I’d say 98 out of 100 times, nothing ever happens, not criminally. Maybe there’s an administrative matter with the clearance, but every once in a while the government gets all worked up and all of a sudden somebody gets prosecuted for lying” in a background check, said Zaid.

One puzzling aspect of Flynn’s case is that as a former Defense Intelligence Agency director and veteran intelligence officer it seems likely he would be aware that conversations with foreign ambassadors of countries seen as hostile to the U.S. are routinely recorded.

“As a former DIA director, he would know that ambassadors are under surveillance, so presumably he would not say something so stupid that it would get him into trouble,” said Zaid, who is handling Freedom of Information lawsuits for some POLITICO reporters.

Still, people sometimes act in ways that don’t seem logical in retrospect, Zeidenberg noted.

“He may not be thinking at that moment that there may be a transcript somewhere that may cross me up. It seems kind of dumb but maybe he didn’t think through the ramifications or implications of what he was saying,” said Zeidenberg, now with law firm Arent Fox.

False statement charges typically tend to be brought with other more substantive charges, although that is not always the case. Sometimes the false-statement charge is filed as part of a plea bargain that avoids a trial on other, more serious claims.

That’s what happened last year with Marine Gen. James Cartwright, former Vice Chairman of the Joint Chiefs of Staff. He pled guilty to a single false-statement felony charge after getting caught up in an investigation into leaks about U.S. use of the Stuxnet virus to impede Iran’s nuclear program.

Prosecutors said they agreed to the plea bargain in order to avoid a contested public trial on an Espionage Act charge of transmitting classified information to journalists. President Barack Obama pardoned Cartwright before he was sentenced.

A special prosecutor investigating the leak of a CIA operative’s identity turned to the false-statement statute and similar laws to indict Vice President Dick Cheney’s chief of staff, Lewis Libby, even though Libby was never charged with leaking. He was sentenced to 30 months in prison after a jury convicted him on four felony counts. President George W. Bush commuted the prison term, but never granted a pardon.

The FBI has a record of aggressively pursuing false statements by potential appointees for senior jobs, at least in some instances.

In 1997, former Clinton administration Housing and Urban Development Secretary Henry Cisneros was indicted in 18 felony counts, including false-statement and obstruction charges, stemming from statements he made to the FBI about payments to a mistress. During an FBI background inquiry, Cisneros acknowledged some payments to the mistress, but understated them and said they had ceased when they had not.

On the eve of trial in 1999, the independent counsel handling the case and Cisneros entered a plea deal where he pled guilty to a single misdemeanor false statement count. He paid a $10,000 fine, but later received a pardon from Clinton.

The prosecution was widely criticized as excessive, but FBI officials said it was critical to preserve the integrity of the FBI’s background check process.

Zeidenberg said he wouldn’t predict a prosecution of Flynn, but he cautioned against ruling it out.

“I could see a case like that brought by the U.S. Attorney’s office in D.C.,” the ex-prosecutor said. “I wouldn’t presume one way or another, but I wouldn’t assume they would never prosecute a case like that.”

Darren Samuelsohn contributed to this report.

