FBI Director James B. Comey informed the House Intelligence Committee that they were investigating “the Russian government’s efforts to interfere in the 2016 election” which includes, “individuals associated with the Trump Campaign and the Russian government and whether there was any coordination between the campaign and Russian efforts.” Generally, the FBI investigates potential criminal acts within their jurisdiction provided under federal statutes. Without all of the facts available it is difficult to predict which statutes may have been violated, but one that has been on the books for over 200 years is the Logan Act of 1799. Designed to prevent private citizens from conducting foreign relations without government authority it provides for imprisonment up to three years for each violation. Further, should there have been any questioning of individuals associated with the Trump Campaign by FBI personnel, and it can be proven that the answers given were false, separate violations for lying to the FBI and obstruction of justice may be charged in the same criminal complaint. Thus the Government in a prosecution of this type has enormous leverage over criminal suspects in gaining their “cooperation.” Failure to cooperate, that is assert your innocence and go trial, usually has disastrous consequences, just ask Martha Stewart or former Sheriff Lee Baca of Los Angeles County. Baca is currently looking at 20 years in prison after being convicted at a re-trial for obstruction of justice and lying to the FBI.
The problem the President is facing, at a minimum, is he had at least two loose cannons rolling around the deck of his campaign prior to his inauguration. The first is his former National Security Advisor Michael Flynn who he fired after less than a month of service for lying about his contacts with Russian officials while working with the Trump campaign. According to leaked reports, which likely were intercepted conversations with officials of the Russian Ambassador’s Office, Mr. Flynn discussed the loosening of Obama Administration sanctions placed on Russia due to interference in our 2016 election through the now well publicized hacking of the DNC, and the Clinton Campaign. These discussions occurred after the election, but prior to President Trump’s inauguration. This would at first blush appear to be a violation of the Logan Act, and should Mr. Flynn have been interviewed by federal law enforcement, and told a similar story to that which he told the Vice President, the penal violations start stacking up. Even if he has not been interviewed, that day is surely coming. He could of course “lawyer up” and take The Fifth, which in the opinion of this defense attorney is the only rational decision under the circumstances.
Paul Manafort is the President’s second problem. Ukrainian prosecutors are seeking U.S. law enforcement assistance in having him testify about how his lobbying firm allegedly received millions of dollars in illegally transferred fees from the former pro-Russian leader Viktor Yanukovych. Manafort, of course, was Donald Trump’s campaign manager when these revelations came to light, and was then summarily fired by the President. The intrigue of his Russian connections is more veiled than Flynn, but the large transfers of cash and the candidate’s consistent admiration for Vladimir Putin make for a target rich investigatory environment. Throw in the misinformation given under oath by then Senator Sessions during his confirmation hearing, and the revelation that he too was in contact with Russian officials while working with the campaign, and we have the makings of a conspiracy indictment seeking only a couple overt acts to make it stick.
The only the thing needed to make it all come together is a quality “snitch.” Searching for enough evidence to get a Grand Jury to indict is the key to making a case against the target suspect, the mastermind, the big fish, the boss every good prosecutor wants to bring down in a moment of glory. In this particular case it is a chance to make the history books. After all, they don’t start these investigations to exonerate someone, they need a conviction to justify the effort. Its in their blood, its what they do, and they know how to put the heat on the “unindicted co-conspirator.” “Just what kind of deal are you offering my client,” is the question on the lips of any good defense attorney sworn to look out solely for the best interest of his client. White House lawyers have likely already considered this scenario and thus the distancing that came from Press Secretary Spicer who recently announced Flynn was “merely a volunteer” and “Manafort had a very limited role for a limited time.” Problem is these evidence bombs have already detonated.
Richard Nixon and Ronald Reagan went through it, John Dean among others snitched off the President, which might not have been enough, but for the fact that Nixon recorded his cover-up. President Reagan was more fortunate in that Security Advisor Robert McFarlane and Colonel Oliver North were willing to take the fall for the President. President Reagan could tell us he didn’t know his administration was secretly selling arms to the Islamic Republic of Iran, and without a snitch enough of us believed it. President Trump may have equal credibility when it comes to denying knowledge about what was really going on, but it is much less likely he will garner the same loyalty as Ronald Reagan. After all, he’s already fired these potential snitches, and it is clear that Manfort is anything but a true believer, and Flynn is about as erratic as they come in government service.
The President still has a couple of cards to play. The first is he doesn’t yet have to put up with a special prosecutor and even if he has recused himself, Jeff Sessions is the Attorney General. I wonder which one of his appointees will have this one come across his desk? So when you get right down to it the man in the crucible of truth is James P. Comey. We know the FBI Director can play hardball since he threw a couple of fast balls right under Hillary Clinton’s chin near the end of the campaign. Now we’re going to see if he’s got the guts for the big show, and all the glory that might come with it, or would he rather just play a little back yard softball, and go home and have a beer with his friends.
Written by: Philip Remington Dunn is a practicing criminal defense attorney, social justice advocate, and author of the critically acclaimed book: When Darkness Reigns.