Michael Flynn, Jared Kushner, and the Logan Act

This morning, former Trump national security advisor Michael Flynn plead guilty to lying to the FBI about his efforts with Jared Kushner to torpedo a United Nations Security Council resolution criticizing Israeli settlements. These included lobbying the Russian ambassador to help in this campaign by delaying or cancelling a vote on the matter. Earlier today, I published a new column in Middle East Eye (MEE) which outlined the case against Kushner.

Here's how the Times laid out the context:

In one of the conversations described in court documents, the men discussed an upcoming United Nations Security Council vote on whether to condemn Israel's building of settlements. At the time, the Obama administration was preparing to allow a Security Council vote on the matter.

Mr. Mueller's investigators have learned through witnesses and documents that Prime Minister Benjamin Netanyahu of Israel asked the Trump transition team to lobby other countries to help Israel, according to two people briefed on the inquiry. Investigators have learned that Mr. Flynn and Mr. Trump's son-in-law and senior adviser, Jared Kushner, took the lead in those efforts. Mr. Mueller's team has emails that show Mr. Flynn saying he would work to kill the vote, the people briefed on the matter said.

Bloomberg elaborates on this:

One transition official at the time said Kushner called Flynn to tell him he needed to get every foreign minister or ambassador from a country on the U.N. Security Council to delay or vote against the resolution. Much of this appeared to be coordinated also with Israeli prime minister Benjamin Netanyahu, whose envoys shared their own intelligence about the Obama administration's lobbying efforts to get member stats [sic] to support the resolution, with the Trump transition team.

Use of the term "intelligence" in the above passage implies that the Israelis knew of the Obama administration efforts in support of the resolution through surveillance or communications intercepts. As Eli Lake is a journalist who is exceedingly close to Israeli officials, including intelligence operatives, this strengthens the notion that he is aware surveillance may've been involved in this case. In the past, we've heard that both the U.S. and Israel bugged each other regarding the negotiations for the P5+1 Iran nuclear deal. This might indicate such efforts were ongoing.

Knowledge that Israel was spying on the Obama administration during this period might reflect even more negatively on the Trump machinations against the resolution before he assumed office. It would strengthen the notion that official U.S. interests and Israelis interests were totally at odds in this case. That in turn strengthens the notion of a Logan Act violation (see below).

In my MEE piece, I suggested that the activity of the Trump transition team, acting before Trump assumed office, was a violation of the Logan Act. It prohibits U.S. citizens from acting in the name of the U.S., while engaging with a foreign power on behalf of the latter's interests. In this case, we have perhaps the most explicit violation of the Act in U.S. history, which has never before seen anyone tried or convicted. In other words, the Obama administration's official position, while not voting for the resolution, was to permit it to be approved by the Security Council. Since this was the official policy of the U.S. government, Trump's attempt to destroy the chances for the resolution's passage was a clear Logan violation.

No doubt, you will hear Israel apologists argue that the Logan Act claim is specious since the resolution ended up passing anyway. They will claim that the Trump machinations were an abject failure, so its actions should be mitigated by this fact. But Logan doesn't make allowances for whether a betrayal of U.S. interests is successful or not. The very act of sabotage is itself the offense.

It's clear in this case that Mueller will not use Logan as the direct charge in court to prosecute Flynn or Kushner. As I mentioned, a violation of the Act alone has never led to a conviction. But lying about one's action pursuant to a Logan Act violation is an eminently prosecutable offense. That's perjury and a standard federal case. This is what Flynn has confessed to.

Next up, without doubt, will be Kushner. He's next in Mueller's sites. But unlike Flynn, he can't cop a plea. If he did so, this would lead directly to Trump, since Kushner without doubt pursued this matter under direct order from Trump. Kushner must protect the big guy. That's why it's likely Mueller will actually file charges against Kushner, indict him and prosecute him. Whether he wins the case will determine whether Trump goes down as the next target.

The big fish is Trump. That's who he's after in the long run. The special counsel aims to hand the Congress a case that is signed, sealed and delivered, ready for impeachment proceedings. Then it will be up to the Republican majority (though if the case lingers after 2018, it might be a Democratic majority) to determine whether to move forward.

So 2018 becomes even more critical than it has been until now. Then Democrats will run on essentially one platform: impeach Trump. They will go to the country and ask the American people to give them a mandate to pursue impeachment. At least they will if they're sensible (which they often aren't) and want to win.

As I wrote in MEE, what's critical about this entire episode is that U.S. policy toward Israel is at the heart of the matter. Never in the history of the Republic has anyone been convicted for acting on behalf of Israel to sabotage U.S. policy. This is a watershed moment (even though this won't be the specific, proximate cause of Flynn or Kushner's ultimate downfall).

The Israel Lobby will deny it played any role in this and claim it has nothing to do with these charges. However, it should understand (though given it's hubris it might refuse to do so) that there are now distinct limits on its power; and that if a politician or Lobby official goes beyond those limits they put themselves into very concrete legal jeopardy.

Critics of Israel and its far-right government are always seeking tell-tale signs of the downfall of the Lobby, hoping that this will lead to the downfall of the racist, oppressive policies Israel has pursued for the past decades. There is always a tendency to overemphasize every development and seeing what one wants to see. This is often my criticism of sites like Mondoweiss. Wish fulfillment isn't the same as fact.

But this case could be a bellweather. A day that marked when one era ended and another began in U.S. relations toward Israel. Whether that happens hinges on whether Mueller succeeds in his case against Kushner and ultimately Trump. History is in the making...