Trump Resorts To His Last Line Of Defense — It’s All Legal

Once again, it appears that Donald Trump’s tweets are just compounding the problems he already has. Trump’s tweets have already been used as evidence to strike down the Muslim ban, are potential evidence in a lawsuit that would challenge the administration’s decision to block the ATT-Time Warner merger, and now may add to the already overwhelming evidence of Trump’s obstruction of justice.

Over the weekend, Trump tweeted “I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!” This seems to indicate that Trump was well aware the Flynn had lied to the FBI, yet Trump still retained him for nearly another three weeks and, at the same time, pushed Comey to essentially go easy on Flynn and let him off the hook.

This clearly seems like a damaging admission from Trump, damaging enough that Trump’s attorney, John Dowd, came out and said he was the one who had originally drafted the tweet, giving Trump a miniscule degree of separation from the admission. But, even accepting that Dowd is being truthful, having your attorney make such an admission is not really going to help Trump’s defense against the obstruction of justice charge.

But I really think the focus on the fact that Trump may have known that Flynn had lied to the FBI is not the most important part of Trump’s tweet. To my mind, his statement that “his actions during the transition were lawful” is far more critical, especially if we take Dowd at his word that he participated in crafting this language. My belief is that this is laying the groundwork for the admission that Trump explicitly ordered Flynn to tell Putin not to react to the new Obama sanctions because the Trump administration would take care of them after Trump was inaugurated. It is quite possible that Mueller already has evidence to prove this. If that is the case, then Trump’s only real defense is that what he instructed Flynn to do was entirely legal.

It seems that the only law that covers the subversion of US foreign policy by individuals is the Logan Act that states, “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.”

But, in the over 200 years since that law was passed, there has never been a successful prosecution under the Act and only two have ever been attempted. Because of its apparent uselessness, there have been frequent attempts to repeal the law, the last ones coming on the late 1970s. Said one Democratic Representative at the time, the Act was simply a tool for “periodic calls for prosecution motivated by opposition to the cause being expressed instead of actual concern about treason.”

In the end, the backdoor negotiations engaged in by Trump, Flynn, and even Kushner may run counter to all our beliefs about how the peaceful transition of power should happen in this country. It may be unseemly and clearly not the way things should be done, but that is true of most things Trump does. It may form a future basis for the political remedy of impeachment. But it is probably not illegal in the strictest sense.

However, just because Flynn’s negotiations with the Russians may not be illegal, the obstruction of justice in thwarting the attempts to uncover the truth about those negotiations clearly is. And, as I say, this latest admission only adds to the substantial evidence of that obstruction. To counter this charge, the Trump defense was laid out clearly by Dowd today, saying, the “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.” In other words, if the President does it, it is by definition legal.

This is the defense that the Trump team is preparing us for. First, Flynn’s actions were authorized by Trump and completely legal. And therefore any attempts to protect Flynn cannot be obstruction of justice because there was no underlying crime. In addition, there can be no obstruction of justice anyway because, by definition, the President cannot obstruct justice.

Originally published at on December 4, 2017.