No, World Leaders Calling Joe Biden Is Not 'Exactly What Michael Flynn Did'

Congratulatory calls are just not at all the same.

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(Photo by Alex Wroblewski/Getty Images)

There are so many legally dubious concepts floating around social media these days that it’s easy for some to get lost in the shuffle. But while we’re mostly focused on wacky voter fraud theories spewing from landscaping parking lots, we shouldn’t lose sight of the higher-minded bad legal takes.

Like this one that many people are positing, including prominent “anti-anti-Trump” reporter Glenn Greenwald:

No, it’s not. Not even a little bit.

Joe Biden is taking congratulatory calls from world leaders where they make their pitches about what they hope to see when Biden assumes the office in January. In fact, what this is “exactly” like is when Trump took these congratulatory calls in 2016 after Hillary Clinton conceded. Note that no one suggested that Donald Trump did anything criminal in taking these calls. Well, there was the decision to take a congratulatory call from Taiwan jacking up the Sino-U.S. relationship and then spending a day trying to explain that it was a deliberate move instead of the obvious bungling of a foreign policy team convinced that they would make Mexico pay for a wall. And even that breach wasn’t considered criminal, just stupid.

In any event, what it is not “exactly” like — from a legal standpoint — is Michael Flynn, who was not part of the governing administration at the time, urging the Russian government to take specific foreign policy actions for the express purpose of undermining American foreign policy. Specifically, he told Russia not to respond to pending sanctions coming from the Obama administration. There’s an argument, of course, that this doesn’t cross the line and that he wasn’t countermanding current policy but only expressing possible future policy… but that is a very daring take on where the line exists. In any event, what Flynn then did was lie about it. And we know these things happened because Flynn admitted to them under oath… twice.

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Greenwald doesn’t like the idea of charging someone with lying to the FBI as a standalone crime, and there are definitely arguments against it. It artificially tilts the balance of power more toward prosecutors who can pile on more charges for defendants refusing to roll over and confess. On the other hand, it IS the current state of the law and, as applied, an agent of the national security apparatus opts into being held to a higher standard than a kid trying to get out of a shoplifting charge. For this category of individual, being anything less than forthcoming to authorities is hard to justify. Flynn wasn’t a whistleblower, like the courageous people Greenwald has made a career of working with over the years. He was a guy lying to investigators for the simple sake of covering up stuff that he knew or should have known was improper.

Personally, I like Greenwald. I’ve always appreciated the work he’s done on the dangerous mainstreaming of the idea that a government spying on its own citizens is not only justified but preferred. Unfortunately, Greenwald is also the sort of idealistic voice that foreign intelligence services “hack” sometimes by pushing their good intentions to the limit. Greenwald’s skepticism of government institutions is so absolute that Biden getting a ring from Justin Trudeau about the election is transformed into “exactly” the same as Flynn to square his fervent belief that the security state has a preference for anti-Russia foreign policy and will pervert the law in pursuit of that goal.

But it’s not the same.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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