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(THREAD) It& #39;s long been *central* to conservative jurisprudence and legislative philosophy that if you don& #39;t like an act of Congress, don& #39;t ignore it—have Congress amend or abolish it. The on-the-books Logan Act has led to multiple indictments—yet the GOP *now* says "ignore it."
1/ For now, let& #39;s put aside 3 *critical* facts:
https://abs.twimg.com/emoji/v2/... draggable="false" alt="1⃣" title="Keycap digit one" aria-label="Emoji: Keycap digit one"> Trump has publicly supported the use of the Logan Act for criminal investigations.
https://abs.twimg.com/emoji/v2/... draggable="false" alt="2⃣" title="Keycap digit two" aria-label="Emoji: Keycap digit two"> The FBI was also investigating Flynn for criminal FARA violations.
https://abs.twimg.com/emoji/v2/... draggable="false" alt="3⃣" title="Keycap digit three" aria-label="Emoji: Keycap digit three"> The FBI counterintelligence probe of Flynn justified questioning him.
2/ The GOP doesn& #39;t want you to remember that its leader supports the use of the Logan Act to criminally investigate executive-branch officials. The GOP doesn& #39;t want you to remember that Flynn was a Turkish agent in the midst of U.S. government being investigated on those grounds.
3/ The GOP doesn& #39;t want you to remember that if you have an active FBI counterintelligence investigation on someone, you can question them even if you *don& #39;t* have an active criminal investigation on them (though *here*, the FBI *did* in fact have such an investigation ongoing).
4/ The GOP doesn& #39;t want you to recall that in January & #39;17 the FBI hadn& #39;t closed its criminal/counterintelligence Flynn probes, so was *obligated* to keep them open when it got new evidence—a *far* less controversial call than one the GOP *applauded* as to Clinton& #39;s *closed* case.
5/ Instead, anonymous cowards like @JohnWHuber—who won& #39;t publish under real names but are retweeted ad nauseam by Trump—want you to focus your attention on the *Logan Act*, as they think it& #39;s a winner for them even though they& #39;re *jettisoning their principles* to make their case.
6/ In making the claim we should ignore laws on the books that& #39;ve been used to indict people before—an unprecedented position for Scalia clones like @baseballcrank to take—the right isn& #39;t just talking about the statutes you can *charge* under but which you can even *acknowledge*.
7/ Fortunately for the GOP, it has some surprisingly compliant debating partners on the left—smart, talented, and knowledgable folks like @Susan_Hennessey who nevertheless are so worried about being respectable they don& #39;t want to risk defending the Logan Act with any seriousness.
8/ On some level, they& #39;re right: the presence of an active counterintelligence investigation into Flynn—*stunningly* well-predicated, as my book Proof of Conspiracy establishes—means we really don& #39;t even need to address the criminal probe of Michael Flynn ongoing in January 2017.
9/ Moreover, the bases for investigating Mike Flynn *criminally* in January 2017 were legion: i.e., not limited to any *stunningly* well-predicated investigation of his FARA offenses. No—we might well add that Flynn& #39;s actions abroad in 2015 and 2016 constituted bribery and fraud.
10/ But if a federal criminal statute is on the books; if it& #39;s been used before—twice—to indict people; if the FBI now is faced with the most egregious violation of the statute in history; the idea that the statute can& #39;t even serve as a predicate for an investigation is *insane*.
11/ The GOP wants you to forget where things stood in January & #39;17: America had just faced the gravest foreign attack ever on a presidential election, and had evidence the campaign that benefited from the foreign aid had solicited it across *scores* of secret meetings over a year.
12/ The *specific* concern of FBI criminal and counterintelligence investigators—the *specific* concern—was that, for a year, MICHAEL FLYNN had been secretly holding out sanctions relief to America& #39;s enemies as a means of encouraging, aiding, and abetting their attack on America.
13/ So in January 2017, FBI investigators—who had open criminal *and* counterintelligence probes of Flynn—came across evidence that MICHAEL FLYNN did *exactly* what they were investigating him for doing: illegally negotiating U.S. foreign policy to encourage an attack on America.
14/ If the federal statute for Treason had been written to include cyberwar, Flynn would& #39;ve been under investigation for Treason—but it wasn& #39;t, so he wasn& #39;t. The FBI was therefore looking at an unprecedented situation—but one as dangerous to America as could possibly be imagined.
15/ I would argue that in January 2017 the FBI had a *range* of options in terms of how it could conceive of its criminal investigation of Flynn: as a bribery investigation; as a conspiracy to commit election fraud investigation; or, among other options, as a Logan Act violation.
16/ The Logan Act—on the books; previously used to indict multiple people; nevertheless an Act focused on such obscure, nefarious conduct that it& #39;d never yet found a case that perfectly matched the fears of those who wrote it—far and away fit the facts of the Flynn case the best.
