Justice, Politics

Screw The Logan Act, Have We Forgotten That Official LYING is Illegal?

We've gotten so used to Trump, and his people, lying that we're forgetting that lying in an official capacity is illegal.

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The President's Men (Photo from Getty)

The President’s Men (Photo from Getty)

Can we just stop it with the Logan Act? The Logan Act hasn’t been used in 200 years. If it was used to prosecute somebody, it’d be a constitutional issue. Pinning your hopes to the Logan Act is like using a kerosene space heater: you no longer need to risk burning your house down in order to keep your feet warm.

Just think about what the Logan Act purports to make illegal. Here’s the actual code:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

Man, are you kidding me? I’d host a cookout for President Nieto and Prime Minister Trudeau and help them game plan how to stop our American dictator. Soon, all private citizens might have left is to attempt to “influence foreign governments” to “defeat the measures of the United States.” Let’s not resurrect the Logan Act before we really think about the long game here.

And we don’t need the Logan Act to hang Michael Flynn out to dry. The former national security adviser stands accused of lying, as a government official.

If you can prove it… THAT’S ILLEGAL. That’s enough. Government officials making false statements is illegal. There’s, like, one CNN article that managed to remember this (gavel bang: UGA Law adjunct Page Pate).

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Federal law also prohibits someone from making a false statement when discussing a matter within the jurisdiction of the federal government if there is an intent to deceive a government agency about an important matter. Making a false statement is a felony that carries up to five years in prison. Unlike the Logan Act, prosecutions under the false statements statute occur all the time.

A false statement can be a lie, or an attempt to cover something up. The critical issue is whether the person intended to mislead a government official about an important matter. Did Flynn make a false statement? Based on what’s been reported, it appears that he did. At some point, it appears that Flynn told Vice President Pence that his discussions with the Russian ambassador did not involve the recently imposed sanctions.

And even if lying to Mike Pence doesn’t trip your wires, Flynn might have lied to the FBI as well.

We’ve gotten so used to Trump lying and the people who work for him lying that we’re forgetting that lying is wrong. And we’re so used to (white) Presidents lying — from Clinton actually having sex with that woman, to Bush’s imaginary weapons of mass destruction — that we just think that lying is a key exercise of executive action. But making false statements to the feds is a crime. Again, let’s go to the code:

18 U.S. Code § 1001 – Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

I don’t actually expect Flynn to go to jail behind this, because “knowingly and willfully” is a tough standard. Flynn, and all the other Trumpsters, have done an excellent job of showing themselves to know so little that proving that they knew enough to know they were lying seems unlikely.

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But let’s just try to keep our eyes on the ball here. If Trump’s people lie, and you can prove it, that’s really enough to hang them. You don’t need to dust off 200-year-old laws, you don’t need to catch them, red-handed, committing treason.

Government officials can’t lie to the government. Seems relevant, just at the moment.

Did Michael Flynn break the law? [CNN]
Flynn’s Downfall Sprang From ‘Eroding Level of Trust’ [New York Times]

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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