Transitions include the president-elect talking to foreign officials. That’s not treason; that’s the job description.
On Friday, President Trump’s former national security adviser, Michael Flynn, pleaded guilty to lying to federal investigators about a perfectly legal conversation he had during the presidential transition with then-Russian Ambassador Sergey Kislyak.
Flynn should not have lied, and why he chose to remains a mystery, but the substance of the single-count indictment against Flynn shows that special counsel Robert Mueller’s investigation has strayed far from its original purpose.
We have come down quite a way from the hyperventilation about Russia “hacking the election” a year ago. What happened to Democratic Sen. Mark Warner’s claim, later promoted by Hillary Clinton, that there were 1,000 Russian agents planting anti-Hillary fake news stories in key swing states? Or that Russians had delivered Wisconsin to Trump? All the conspiracy theorists have so far are a few Facebook ads that can’t credibly be shown to have changed even one vote.
Flynn was fully in his rights making the call to Kislyak. Despite the best efforts of the anti-Trumpers, it is still not illegal to talk to Russians. Even Democratic former CIA director and Defense secretary Leon Panetta said it was a “stretch” to say these contacts broke the law.
The dust-up seems mainly to be about the decorum of presidential transitions. Days after the 2016 election, the Trump team cautioned the Obama administration against pursuing new and damaging foreign policy initiatives that did not align with Trump’s priorities.
“I don’t think it’s in keeping with the spirit of the transition,” one of president-elect Trump’s national security advisers told Politico on Nov. 10, 2016, “to try to push through agenda items that are contrary to the president-elect’s positions.”
The Trump transition team feared, for good reason, that the lame-duck Obama administration was poisoning the well with Russia, and pursuing spiteful anti-Israel policies on the way out the door. Trump asked Flynn, his soon-to-be national security adviser, to open a semi-official channel to Russia through its ambassador to discuss future cooperative efforts against the Islamic State and the United Nations vote on an anti-Israel resolution. As lawyer Alan Dershowitz argued, “Not only was that request not criminal, it was the right thing to do.”
The phone call to Kislyak, and any other such contacts with foreign officials, should be viewed in that context. This was not, for example, on the level of colluding with shadowy Russian intelligence contacts to create disinformation to try to swing the election, as the authors of the Clinton-connected Trump smear dossier did.
There was ample precedent for the president-elect to put out feelers to foreign leaders.
- A memo from the Podesta files released by WikiLeaks shows that the Obama team had planned for the “president-elect and senior officials (to) begin confidential policy consultations with key actors in U.S. and abroad” between Thanksgiving and Inauguration Day.
- Obama also openly used emissaries and go-betweens to meet with foreign leadersduring his transition.
- And for overwrought members of “the resistance” who think the unenforceable Logan Act is suddenly in play, recall that in 2008 then-candidate Obama arranged substantive foreign policy discussions with numerous foreign dignitaries and leaders during an overseas campaign trip before the election.
An erroneous ABC News report that Trump had dispatched Flynn to make contact with Russia before the election appears to have caused a massive stock market selloff. The report was corrected, and reporter Brian Ross was suspended. The important takeaway of ABC’s fake news outbreak is that since the Trump team’s outreach to Russia took place after the election, it implies there were no channels to Moscow before the fact. This puts a stake in the heart of the collusion theory.
A CNN analyst speculated that instead of outright coordination, there was an implicit quid pro quo for Russia getting Trump elected. This might be called the “grasping at straws” gambit.
On Sunday, Sen. Diane Feinstein, D-Calif., resurrected the notion that Trump obstructed justice by firing then-FBI Director and Bible scholar James Comey. But again, this is a weak and constitutionally suspect narrative.
The real obstruction might be found in the Mueller investigation itself. The legitimacy of the FBI witch hunt against Trump was further damaged by reports that leading FBI investigator Peter Strzok, who had spearheaded the investigation into Hillary Clinton’s sketchy home-brew email server, was demoted because of anti-Trump texts he exchanged with co-worker Lisa Page, with whom he was having an extramarital affair.
This is hardly an unbiased investigation. If the type of process crime that Flynn was nailed for is all the Mueller team can come up with, it is time to move on.
James S. Robbins, a member of USA TODAY’s Board of Contributors and author of This Time We Win: Revisiting the Tet Offensive, has taught at the National Defense University and the Marine Corps University and served as a special assistant to the secretary of Defense in the George W. Bush administration. Follow him on Twitter: @James_Robbins.