Former White House National Security Adviser and currently the biggest fish in special counsel Robert Mueller’s Russia investigation’s net, Michael Flynn, has turned in his first victim in exchange for limiting the case against him to lying to the FBI. So far, the victim is being referred to officially only as a “very senior member” of President Donald Trump’s transition team, but few in the media doubt it is presidential son-in-law Jared Kushner.
Should this be confirmed, Kushner could become the first US citizen to have been charged with violating the 1799 Logan Act, and if he did this on behalf of his father-in-law then the Trump presidency is in very deep trouble.
In late 2016, after Hillary Clinton’s long presidential campaign, during which outgoing President Barack Obama had to curb his anti-Israeli urges, the time finally came for Obama and his Secretary of State John Kerry to have the last word.
On Dec. 23, 2016, the UN Security Council voted to condemn Israeli settlements, with 14 members voting yes and a US abstention. The resolution said Israel’s settlements in the territories it liberated in 1967 including eastern Jerusalem, had “no legal validity” and were a “flagrant violation” of international law, and demanded that “all Israeli settlement activities” be put on hold, because this “is essential for salvaging the two-state solution.”
The resolution text was so blatantly anti-Israel, the Obama administration had vetoed almost the exact same resolution in 2011, the only veto cast by Obama at the security council.
Prime Minister Benjamin Netanyahu, fearing just this kind of betrayal, spent the days leading up to the vote, according to Reuters, in a desperate effort to prevent or at least delay to UN vote. He called “high level” officials on President-elect Trump’s transition team, asking for help. According to Michael Flynn’s confession, as recorded in court documents made public on Friday, a high ranking member of the transition team, identified by sources as Jared Kushner, instructed Flynn on the day before the vote to contact UNSC member governments, Russia included, conveying a message from the next president of the United States asking them to delay or vote against the resolution.
Flynn confessed that he contacted then-Russian Ambassador to the US Sergei Kislyak both on the Thursday before and on the Friday of the vote. Kislyak refused the request both times. Flynn also contacted the Uruguay and Malaysia UN missions. Kushner contacted the British ambassador to the United States.
Earlier, according to Reuters, President-elect Trump contacted Egyptian President Abdel Fattah al-Sisi, and got him to withdraw the original draft, which had been submitted by the Egyptian delegation. The Friday vote was initiated by New Zealand, Malaysia, Senegal and Venezuela.
Which brings us back to the Logan Act, signed into law by President John Adams on January 30, 1799. It was a response to a Philadelphia Quaker named George Logan who had tried to negotiate directly with the French government, ignoring the policy of the Federalist party which was in control of Congress and the White House. It goes:
“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.”
In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), Justice Sutherland, writing for the Court, observed: “[T]he President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, ‘The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.'”
If Flynn is to be believed, then Jared Kushner indeed violated the Logan Act, of all things to prevent Israel from being shamed publicly. Should this matter actually become part of an effort to prosecute, the courts would have to decide whether the transition team officials of a president-elect fall under the category of “Any citizen of the United States, wherever he may be, who, without authority of the United States.” Can a president-to-be hit the ground running by forging his own relations with foreign officials, and what is the limit on the scope of these relations?