WEBVTT - Flynn Resignation Becomes Legal Question (Audio)

0:00:00.160 --> 0:00:03.400
<v Speaker 1>Michael Flynn's tenure was the shortest as a national security

0:00:03.400 --> 0:00:06.360
<v Speaker 1>advisor of all time, with his resignation coming after just

0:00:06.840 --> 0:00:09.680
<v Speaker 1>about twenty four days. Flynn resigned and made reports that

0:00:09.760 --> 0:00:13.000
<v Speaker 1>during the presidential campaign he had discussed u S sanctions

0:00:13.039 --> 0:00:16.840
<v Speaker 1>against Russia during conversations with Russian officials. The White House

0:00:16.920 --> 0:00:19.560
<v Speaker 1>is confirmed as well that General Flynn misled Vice President

0:00:19.560 --> 0:00:22.400
<v Speaker 1>Michael Pence about the conversations. And now there are reports

0:00:22.440 --> 0:00:25.640
<v Speaker 1>that the FBI is investigating contacts between other members of

0:00:25.640 --> 0:00:28.200
<v Speaker 1>the Trump campaign and Russian intelligence in the year before

0:00:28.240 --> 0:00:31.960
<v Speaker 1>the election. These developments have raised concerns about possible disarray

0:00:31.960 --> 0:00:35.920
<v Speaker 1>and the administration's national security apparatus, and also questions about

0:00:35.920 --> 0:00:38.120
<v Speaker 1>whether anyone in the Trump campaign broke the law in

0:00:38.159 --> 0:00:41.280
<v Speaker 1>their contacts with the Russian government. Here to talk to

0:00:41.360 --> 0:00:44.640
<v Speaker 1>us about all of this are Stephen Vladick, a professor

0:00:44.720 --> 0:00:47.640
<v Speaker 1>at the University of Texas Law School, and William Banks,

0:00:47.680 --> 0:00:51.760
<v Speaker 1>founding director of the Institute for National Security and counter Terrorism.

0:00:51.800 --> 0:00:54.840
<v Speaker 1>Thank you both for being here. Steve, Let's start with

0:00:55.160 --> 0:00:59.960
<v Speaker 1>the law itself, the law that um people may have violate.

0:01:00.120 --> 0:01:03.000
<v Speaker 1>To hear that there were some questions to whether General

0:01:03.000 --> 0:01:05.640
<v Speaker 1>Flynn and violated. It is that called the Logan Act.

0:01:05.760 --> 0:01:09.039
<v Speaker 1>Tell us about what the Logan Act is. The Logan Act,

0:01:09.120 --> 0:01:12.840
<v Speaker 1>I think is the favorite, uh, dusty old chestnut that

0:01:12.920 --> 0:01:15.720
<v Speaker 1>folks like to drag out anytime someone we don't like

0:01:16.160 --> 0:01:19.000
<v Speaker 1>does something in the foreign policy that we disagree with. UM.

0:01:19.040 --> 0:01:22.840
<v Speaker 1>This is a see statute, not a typo. UM. The

0:01:22.959 --> 0:01:26.280
<v Speaker 1>Congress passed basically in response to an incident where a

0:01:26.280 --> 0:01:30.080
<v Speaker 1>guy named Dr George Logan, who was a prominent Democratic

0:01:30.120 --> 0:01:35.120
<v Speaker 1>Republican basically a Jeffersonian in Philadelphia, UM, took America's foreign

0:01:35.200 --> 0:01:38.360
<v Speaker 1>policy with France into his own hands, tried to negotiate

0:01:38.400 --> 0:01:41.440
<v Speaker 1>with the French government, even though President Adams and Congress

0:01:41.440 --> 0:01:43.679
<v Speaker 1>at the time we're very much more pro British UM.

0:01:43.760 --> 0:01:47.240
<v Speaker 1>And the statute purports to prohibit anyone, acting without the

0:01:47.280 --> 0:01:50.920
<v Speaker 1>authority of the United States UM, from engaging in correspondence

0:01:50.960 --> 0:01:54.120
<v Speaker 1>or communications with foreign governments that has the effect of

0:01:54.160 --> 0:01:58.840
<v Speaker 1>influencing our foreign policy. It's never been successfully used. The

0:01:58.920 --> 0:02:02.840
<v Speaker 1>last indictment was in early nineteenth century. There are serious

0:02:02.920 --> 0:02:06.760
<v Speaker 1>constitutional objections to it, including that it's a content based

0:02:06.760 --> 0:02:10.040
<v Speaker 1>restriction on speech, and that it's vague. UM. And you know,

0:02:10.200 --> 0:02:11.799
<v Speaker 1>I don't think that Jeff Sessions is going to be

0:02:11.840 --> 0:02:14.160
<v Speaker 1>in a big hurry to prosecute Mike Flynn. So it's

0:02:14.200 --> 0:02:17.160
<v Speaker 1>a fun academic exercise, but I think it's actually probably

0:02:17.480 --> 0:02:18.839
<v Speaker 1>not at the end of the day, what the real

0:02:18.919 --> 0:02:23.440
<v Speaker 1>headline is about Michael Flynn. William. Would it be possible

0:02:23.520 --> 0:02:26.359
<v Speaker 1>even to invoke it after it's been ignored for more

0:02:26.440 --> 0:02:29.440
<v Speaker 1>than two hundred years, and what are the optics of

0:02:29.480 --> 0:02:34.079
<v Speaker 1>doing that? I agree with with Steve that it's highly

0:02:34.160 --> 0:02:36.560
<v Speaker 1>unlikely that it's going to be invoked in this case.

0:02:36.639 --> 0:02:41.600
<v Speaker 1>It's a it's a political tool used by an administration

0:02:41.680 --> 0:02:45.440
<v Speaker 1>to control voices outside the government that they don't want

0:02:45.480 --> 0:02:48.720
<v Speaker 1>to have participating in a in a national security or

0:02:48.720 --> 0:02:54.079
<v Speaker 1>foreign affairs matter, and that's certainly not the case with Flynn. Well,

0:02:54.120 --> 0:02:56.959
<v Speaker 1>Steve it it may be impossible to enforce, but it's

0:02:57.000 --> 0:02:59.040
<v Speaker 1>a I mean, it is a real concern when you have,

0:02:59.320 --> 0:03:01.880
<v Speaker 1>you know, usual traditionally we've had kind of one president

0:03:01.919 --> 0:03:04.240
<v Speaker 1>at a time, as they say, and you want you

0:03:04.280 --> 0:03:08.280
<v Speaker 1>don't want private citizens conducting foreign policy, particularly when the

0:03:08.280 --> 0:03:10.080
<v Speaker 1>president is trying to do certain things and a new

0:03:10.080 --> 0:03:13.040
<v Speaker 1>president has been sworn in yet, so where is kind

0:03:13.040 --> 0:03:16.760
<v Speaker 1>of it may not be legally in something we can enforce.

0:03:16.800 --> 0:03:18.840
<v Speaker 1>But it has kind of drawn a line for people,

0:03:18.880 --> 0:03:21.880
<v Speaker 1>hasn't it about how they should behave? Yes? And no,

0:03:22.000 --> 0:03:23.799
<v Speaker 1>I mean I think the Logan APT, I mean, let's

0:03:23.800 --> 0:03:26.520
<v Speaker 1>be clear, the Logan APT itself wasn't directed at the

0:03:26.560 --> 0:03:29.800
<v Speaker 1>problem of presidential transitions. Um, right, I mean George Logan

0:03:29.880 --> 0:03:33.280
<v Speaker 1>was just a private citizen when Congress past that statute. Um.

0:03:33.320 --> 0:03:36.400
<v Speaker 1>The problem of presidential transitions is one Congress has actually

0:03:36.440 --> 0:03:39.520
<v Speaker 1>finally started to grapple within a series of statutes in

0:03:39.560 --> 0:03:42.640
<v Speaker 1>the last fifteen years. And I can totally imagine a

0:03:43.200 --> 0:03:46.720
<v Speaker 1>you know, narrower and much more focused, maybe non criminal

0:03:47.200 --> 0:03:52.080
<v Speaker 1>restriction on what kinds of contacts a transition team is

0:03:52.080 --> 0:03:54.600
<v Speaker 1>allowed to have with foreign governments. But I guess the

0:03:54.600 --> 0:03:57.600
<v Speaker 1>problem is that, you know, compared to that specific problem

0:03:57.680 --> 0:04:00.600
<v Speaker 1>and to the one president at a time, um, you

0:04:00.600 --> 0:04:03.920
<v Speaker 1>know phenomenon, the Logan Act is a is a broadsword,

0:04:03.960 --> 0:04:06.040
<v Speaker 1>not a scalpel. And so you know, I think it's

0:04:06.040 --> 0:04:09.040
<v Speaker 1>the issue here is not so much whether we ever

0:04:09.160 --> 0:04:12.440
<v Speaker 1>want individual members of transition teams, you know, set it

0:04:12.480 --> 0:04:15.320
<v Speaker 1>on the stage for the foreign policy that their president

0:04:15.360 --> 0:04:18.359
<v Speaker 1>is soon going to be conducting, but rather you know,

0:04:18.480 --> 0:04:19.919
<v Speaker 1>is this really the way to do it or should

0:04:19.920 --> 0:04:22.280
<v Speaker 1>Congress go back to the drawing board? Um. And with

0:04:22.400 --> 0:04:24.040
<v Speaker 1>regard to Flynn, I think the issue is, you know,

0:04:24.080 --> 0:04:26.679
<v Speaker 1>separate from the Logan Act, is in other kinds of

0:04:26.680 --> 0:04:30.520
<v Speaker 1>of legal hot water William. That brings up the FBI

0:04:30.680 --> 0:04:33.599
<v Speaker 1>question Flynn in the early days of the Trump presidency

0:04:33.640 --> 0:04:38.200
<v Speaker 1>about his conversations, and investigators believe Flynn was not entirely

0:04:38.279 --> 0:04:41.400
<v Speaker 1>forthcoming to put it. According to The New York Times,

0:04:41.480 --> 0:04:45.600
<v Speaker 1>if the authorities conclude that Flynn knowingly lied to the FBI,

0:04:45.760 --> 0:04:48.680
<v Speaker 1>could that expose him to a felony charge from making

0:04:48.680 --> 0:04:52.880
<v Speaker 1>false statements? It could. And in contrast to the Logan Act,

0:04:52.960 --> 0:04:56.279
<v Speaker 1>it's uh, it's it's written in such a way that

0:04:56.279 --> 0:04:59.159
<v Speaker 1>that it pretty directly applies to what Flynn did. It

0:04:59.240 --> 0:05:03.200
<v Speaker 1>just says that anyone who is within the jurisdiction of

0:05:03.279 --> 0:05:08.960
<v Speaker 1>the government the United States knowingly and willfully makes materially false,

0:05:09.720 --> 0:05:15.400
<v Speaker 1>fictitious of fraudulent statement is is engaged in felonious behavior.

0:05:15.560 --> 0:05:18.520
<v Speaker 1>So I think there's a fair chance. So it's the

0:05:18.520 --> 0:05:21.640
<v Speaker 1>old adage that the cover up is worse than the crime, right,

0:05:21.680 --> 0:05:25.400
<v Speaker 1>So I agree with with Steve about the Logan Act,

0:05:25.480 --> 0:05:28.040
<v Speaker 1>and and it's it's not going to happen in this

0:05:28.080 --> 0:05:31.000
<v Speaker 1>case that he will be sanctioned for what he actually

0:05:31.080 --> 0:05:33.479
<v Speaker 1>might have talked to the Russian ambassador about, but he

0:05:33.560 --> 0:05:36.279
<v Speaker 1>may well be sanctioned for a line about it to

0:05:36.360 --> 0:05:40.400
<v Speaker 1>the Bureau. As the Trump administration considers possible replacements for

0:05:40.400 --> 0:05:43.680
<v Speaker 1>former National Security Advisor Michael Flynn, and the FBI is

0:05:43.720 --> 0:05:48.160
<v Speaker 1>reportedly investigating contacts between Trump campaign officials and Russian intelligence

0:05:48.200 --> 0:05:51.559
<v Speaker 1>during last year's campaign. Russia has deployed a land based

0:05:51.560 --> 0:05:55.640
<v Speaker 1>cruise missile that American officials say violates the Intermediate Range

0:05:55.720 --> 0:05:59.279
<v Speaker 1>Nuclear Forces or i n F Treaty. So things with

0:05:59.360 --> 0:06:01.640
<v Speaker 1>Russia and on the federal levels seem to be getting

0:06:01.920 --> 0:06:05.880
<v Speaker 1>very mixed up. We have been talking with Stephen Vladika,

0:06:05.920 --> 0:06:08.880
<v Speaker 1>professor at the University of Texas School of Law, and

0:06:08.960 --> 0:06:11.799
<v Speaker 1>William Banks of the Institute for National Security and counter

0:06:11.880 --> 0:06:15.919
<v Speaker 1>Terrorism about the resignation of an ESSA director Flynn and

0:06:15.960 --> 0:06:18.720
<v Speaker 1>the investigations going on, and we're going to talk about

0:06:18.720 --> 0:06:22.679
<v Speaker 1>this and the and the treat possible treaty valation. Um. William,

0:06:22.839 --> 0:06:27.280
<v Speaker 1>Let's start though, by continuing to talk about the the

0:06:27.360 --> 0:06:31.960
<v Speaker 1>situation involving the possible Logan Act violations or communications with

0:06:32.000 --> 0:06:34.720
<v Speaker 1>the Russian government. You know, we were talking about the

0:06:34.760 --> 0:06:38.480
<v Speaker 1>fact that there's not really a lot of prosecutorial possibility

0:06:38.560 --> 0:06:40.240
<v Speaker 1>here and the and the law is kind of vague.

0:06:41.120 --> 0:06:43.520
<v Speaker 1>Are there other things that we could expect from a

0:06:43.600 --> 0:06:46.280
<v Speaker 1>legal standpoint, perhaps in Congress that might happen as a

0:06:46.279 --> 0:06:50.279
<v Speaker 1>result of UM people being concerned about improper contacts between

0:06:50.279 --> 0:06:54.839
<v Speaker 1>Trump campaign officials and the Russians. Well, as many of

0:06:54.880 --> 0:06:58.920
<v Speaker 1>your listeners know, the Congress is ality determined to begin

0:06:59.000 --> 0:07:03.800
<v Speaker 1>investigation of the of the Russian involvement in the sixteen

0:07:03.839 --> 0:07:08.640
<v Speaker 1>presidential election on the basis of the intelligence communities reports

0:07:08.680 --> 0:07:13.240
<v Speaker 1>that were released before that the Trump administration took office.

0:07:13.280 --> 0:07:16.960
<v Speaker 1>And I think that those they're simply additional impetus to

0:07:17.000 --> 0:07:21.600
<v Speaker 1>get those investigations going now and to broaden their scope

0:07:21.600 --> 0:07:26.800
<v Speaker 1>to include a potential involvement of Trump campaign officials during

0:07:26.840 --> 0:07:31.640
<v Speaker 1>the pendency of the election. Steve Senator Mark Warner of

0:07:31.720 --> 0:07:36.800
<v Speaker 1>the Senate Intelligence Committee investigation said that they're they're going

0:07:36.840 --> 0:07:38.760
<v Speaker 1>to go forward. When he was he said it would

0:07:38.760 --> 0:07:43.000
<v Speaker 1>be appropriate for Flynn to testify, but he wouldn't say

0:07:43.080 --> 0:07:46.679
<v Speaker 1>whether or not they had decided to subpoena him. Would

0:07:46.760 --> 0:07:51.200
<v Speaker 1>his testimony be part of any intensive investigation. I mean,

0:07:51.200 --> 0:07:53.000
<v Speaker 1>I would think it would have to be. But you know,

0:07:53.040 --> 0:07:55.800
<v Speaker 1>it's it's telling that that quote comes from Senator Warner,

0:07:56.280 --> 0:07:58.400
<v Speaker 1>who you know, is in the minority right now on

0:07:58.440 --> 0:08:01.440
<v Speaker 1>the Senate Intelligence Committee. Seems like the real question is

0:08:01.440 --> 0:08:05.400
<v Speaker 1>whether it's the Republican leadership um Speaker Ryan, Senator McConnell,

0:08:05.440 --> 0:08:08.080
<v Speaker 1>and the chairs of the relevant committees who are actually

0:08:08.120 --> 0:08:12.120
<v Speaker 1>going to show any interest in having any kind of investigation,

0:08:12.120 --> 0:08:15.360
<v Speaker 1>any kinds of hearings. You know, Congressman Nunez, who's the

0:08:15.440 --> 0:08:18.080
<v Speaker 1>chair of the House Intelligence Committee, said yesterday that he

0:08:18.120 --> 0:08:21.120
<v Speaker 1>thought the far bigger issue coming out of this news

0:08:21.160 --> 0:08:25.120
<v Speaker 1>regarding General flann Um was the leaking um and the

0:08:25.160 --> 0:08:29.600
<v Speaker 1>possibility that someone had disclosed the contents of you know,

0:08:29.800 --> 0:08:33.240
<v Speaker 1>secret surveillance in violation of the Foreign Intelligence Surveillance Act.

0:08:33.559 --> 0:08:36.800
<v Speaker 1>So long as Congress thanks that's the story here, I'm

0:08:36.840 --> 0:08:39.280
<v Speaker 1>not especially optimistic that Senator Warner is going to have

0:08:39.440 --> 0:08:43.840
<v Speaker 1>his chaps. Well. Another story we have, William is the

0:08:43.840 --> 0:08:46.880
<v Speaker 1>fact that there's American officials are now saying that Russia

0:08:46.920 --> 0:08:49.840
<v Speaker 1>has violated a treaty, which is of course you know,

0:08:50.000 --> 0:08:53.920
<v Speaker 1>legal obligation between countries that goes back to the Reagan administration. Um,

0:08:53.960 --> 0:08:59.160
<v Speaker 1>by deploying this land based missile system, can you give

0:08:59.240 --> 0:09:01.520
<v Speaker 1>us some backstory what this treaty is and what the

0:09:01.600 --> 0:09:05.600
<v Speaker 1>violation might be. Well, the treaty is is a thirty

0:09:05.679 --> 0:09:08.880
<v Speaker 1>year old treaty, has to do with land based weaponry,

0:09:09.120 --> 0:09:11.640
<v Speaker 1>and and indeed there's I think a pretty good case

0:09:11.720 --> 0:09:15.400
<v Speaker 1>to be made that that the deployment of this particular

0:09:15.520 --> 0:09:19.360
<v Speaker 1>unit by the Russians would be a treaty violation. It's

0:09:19.400 --> 0:09:23.760
<v Speaker 1>you know, it requires some interpretation. Uh. The questions will

0:09:23.800 --> 0:09:28.000
<v Speaker 1>be uh carefully visited inside our government as well as

0:09:28.280 --> 0:09:31.480
<v Speaker 1>in NATO. The larger context here, I think, though, is

0:09:32.120 --> 0:09:37.040
<v Speaker 1>what what plays the Russians are making now because of

0:09:37.080 --> 0:09:41.000
<v Speaker 1>the transition, the youth of the Trump administration, the inexperience

0:09:41.040 --> 0:09:45.080
<v Speaker 1>of many who are now in key positions in the administration,

0:09:45.160 --> 0:09:50.800
<v Speaker 1>so being aggressive in Ukraine rolling out this weapon system. Uh.

0:09:50.880 --> 0:09:55.840
<v Speaker 1>They had a near miss with a US ship in

0:09:56.000 --> 0:09:59.800
<v Speaker 1>the in the region, I believe it was yesterday. Uh.

0:10:00.000 --> 0:10:02.280
<v Speaker 1>Seems like they're testing US in a in a number

0:10:02.320 --> 0:10:06.200
<v Speaker 1>of ways, including this UH involvement in the in the

0:10:06.280 --> 0:10:11.760
<v Speaker 1>election before the fact Steve considering that it's difficult to

0:10:12.120 --> 0:10:16.240
<v Speaker 1>figure out where Trump's position on Russia is any one day.

0:10:16.320 --> 0:10:19.200
<v Speaker 1>He had some tweets today that seemed to say something

0:10:19.320 --> 0:10:22.600
<v Speaker 1>different than he said before. Is there any Do you

0:10:22.600 --> 0:10:26.160
<v Speaker 1>think there's any likelihood that they would actually do something

0:10:26.800 --> 0:10:31.800
<v Speaker 1>if they found that Russia had violated the Arms Control treaty?

0:10:32.520 --> 0:10:34.880
<v Speaker 1>I wouldn't hold my breast. I mean, I think that

0:10:34.960 --> 0:10:38.600
<v Speaker 1>I think there's a there's a real question here about

0:10:38.960 --> 0:10:42.280
<v Speaker 1>what the diplomatic priorities of the federal government are visa

0:10:42.360 --> 0:10:45.480
<v Speaker 1>the Russia. You know, Secretary Tillerson made a number of

0:10:45.480 --> 0:10:48.520
<v Speaker 1>statements during his confirmation hearing um that he was not

0:10:48.640 --> 0:10:52.640
<v Speaker 1>potentially as sympathetic as as some other administration. Um. But

0:10:52.679 --> 0:10:54.320
<v Speaker 1>I just have a hard time thinking that if we

0:10:54.320 --> 0:10:57.240
<v Speaker 1>were going to draw some kind of diplomatic redline with Russia,

0:10:57.679 --> 0:11:00.200
<v Speaker 1>that this would be it. Um. And I think that's

0:11:00.240 --> 0:11:02.679
<v Speaker 1>the real problem, because then the question becomes, what does

0:11:02.760 --> 0:11:05.400
<v Speaker 1>Russia do next? UM. I think there's no question, as

0:11:05.440 --> 0:11:08.280
<v Speaker 1>Bill rightly says, you know that Russia's gonna sort of

0:11:08.320 --> 0:11:10.679
<v Speaker 1>poke and prod and try to figure out how it

0:11:10.720 --> 0:11:14.840
<v Speaker 1>can take maximum advantage m of the inexperience and frankly

0:11:14.880 --> 0:11:18.679
<v Speaker 1>the incompetence of the new administration, and then the question

0:11:18.679 --> 0:11:20.480
<v Speaker 1>just becomes if it's not going to be the White

0:11:20.480 --> 0:11:23.199
<v Speaker 1>House that pushes back who's left? And I think that's

0:11:23.200 --> 0:11:25.480
<v Speaker 1>why the attention once again has to come back to

0:11:25.559 --> 0:11:28.800
<v Speaker 1>Congress UM and to whether, for example, there should be

0:11:28.880 --> 0:11:32.120
<v Speaker 1>legislation to prevent the president from you know, laterally lifting

0:11:32.240 --> 0:11:35.840
<v Speaker 1>the sanctions against Russia UM and other legislative measures, you know,

0:11:35.920 --> 0:11:39.199
<v Speaker 1>until the less Congress really starts assertive its own institutional

0:11:39.320 --> 0:11:41.440
<v Speaker 1>role here, we're going to see more of this, not

0:11:41.559 --> 0:11:43.959
<v Speaker 1>less of it. Well, it certainly seems as though these

0:11:43.960 --> 0:11:46.720
<v Speaker 1>stories are not going to be going away anytime soon.

0:11:46.840 --> 0:11:49.920
<v Speaker 1>Our thanks to Professor Stephen Vladdock of the University of

0:11:49.960 --> 0:11:52.880
<v Speaker 1>Texas School of Law, and to WILLIAMS. William Banks, the

0:11:52.920 --> 0:11:56.120
<v Speaker 1>founding director of the Institute for National Security Encounter Terrorism,

0:11:56.320 --> 0:12:00.120
<v Speaker 1>for joining us here today on Bloomberg Law. Coming up

0:12:00.120 --> 0:12:03.360
<v Speaker 1>on Bloomberg Law, the Justice Department has sued Direct TV

0:12:03.440 --> 0:12:06.800
<v Speaker 1>and A T and T over colluding with competitors about

0:12:06.840 --> 0:12:10.760
<v Speaker 1>the Los Angeles Dodgers television channel. Apparently they don't want

0:12:10.760 --> 0:12:13.400
<v Speaker 1>to pay the prices the time Warner Cable has been

0:12:13.440 --> 0:12:15.160
<v Speaker 1>trying to get them to pay and a lot of

0:12:15.200 --> 0:12:16.800
<v Speaker 1>people in LA have not been able to watch the

0:12:16.840 --> 0:12:20.280
<v Speaker 1>Dodgers for some time, so action by the Justice Department

0:12:20.640 --> 0:12:22.960
<v Speaker 1>coming up here on Bloomberg Law with Michael Best and

0:12:23.040 --> 0:12:25.479
<v Speaker 1>June Grassoe. This is Bloomberg