Newly released notes suggest that former VP Joe Biden mentioned the “Logan Act” during an early January 2017 Oval Office discussion about the investigation into retired Lt. Gen. Michael Flynn.
It’s not fully clear what Biden said about the 1799 law, but Flynn’s legal team said “it appears” he “personally raised the idea” during a meeting between former President Obama, then-FBI Director James Comey, national security adviser Susan Rice, and Deputy Attorney General Sally Yates in the days leading up to President Trump’s inauguration.
New insight into the conversation is given by chicken-scratch notes taken by former FBI special agent Peter Strzok, who later oversaw the bureau’s interviews with Flynn, then Trump’s incoming national security adviser, as part of the counterintelligence investigation into links between the Trump campaign and Russia.
The notes were disclosed in a court filing Wednesday to the U.S. District Court for the District of Columbia around the same time a federal appeals court ruled in a 2-1 decision that the judge presiding over the case against Flynn grant the Justice Department’s motion to dismiss the criminal charges against him. U.S. Attorney Jeffrey Jensen of Missouri, who was picked by AG Barr to review the government’s case against Flynn, “obtained and analyzed” the document. Biden’s comment about the Logan Act are the only words that appear in quotation marks.
The officials were discussing phone calls Flynn had with Russian Ambassador Sergey Kislyak about a United Nations resolution on Israel and sanctions during the presidential transition period. At one point, Strzok wrote that Comey said the calls “appear legit.” Obama emphasized that “the right people” should look into Flynn.
In a memo hastily written on Trump’s Inauguration Day, Rice noted that Comey had “some concerns” about those calls and warned “that could be an issue as it relates to sharing sensitive information.” Rice’s email to herself claims Obama insisted everything be done “by the book.”
Both Strzok and Rice note that Obama asked if there is any sensitive information he should not mention to the Trump transition team. Rice wrote that Comey replied, “‘Potentially.’ He added that he has no indication that Flynn has passed classified information to Kislyak, but he noted that ‘the level of communication is unusual.’”
Earlier in the meeting, Obama said something to the effect of “these are unusual times,” according to Strzok’s notes, with Biden saying, “I’ve been on the Intel Committee for ten years and I never” before the notes trail off.
Flynn, who served as Trump’s first national security adviser for only a couple weeks, pleaded guilty in December 2017 to lying to FBI investigators about his December 2016 conversations with Kislyak. But Flynn now claims he was set up by the FBI, and the Justice Department is seeking to drop the case.
Documents declassified in April indicate Strzok abruptly stopped the FBI from closing its investigation into Flynn in early January 2017 at the insistence of the FBI’s “7th floor” leadership after the bureau had uncovered “no derogatory information” on Flynn. Emails from later that month showed Strzok, along with FBI lawyer Lisa Page and several others, sought out ways to continue investigating Flynn, including by deploying the Logan Act.
The Logan Act, which forbids private citizens from engaging in unauthorized correspondence with foreign governments in relation to “disputes or controversies with the United States, or to defeat the measures of the United States,” was passed in 1799 and has only been used to indict someone twice, in 1802 and 1852, with no convictions.
Flynn’s team claims the Logan Act “became an admitted pretext to investigate General Flynn.” Flynn, who Trump picked to be his national security adviser on Nov. 18, 2016, became the subject of intense media scrutiny and a cornerstone in arguments that the Trump campaign had ties to Russia.
A Washington Post column by David Ignatius on Jan. 12, 2017, contained classified details that kicked off a media frenzy. Citing a “senior U.S. government official,” he wrote that Flynn and Russia’s ambassador spoke on the phone on Dec. 29, 2016, the day that Obama announced sanctions on Russia, with the article suggesting Flynn violated the Logan Act.
A list of officials who received information in response to unmasking requests, declassified by now-former acting Director of National Intelligence Richard Grenell, shows that 16 individuals made 49 unmasking requests related to Flynn between Election Day 2016 and Jan. 31, 2017. The National Security Agency document shows 39 Obama officials who received the unmasking intelligence.
One of the senior officials on the list was Biden. In recent interviews, Biden contradicted himself on what he knew about the Flynn investigation and when he knew it.
U.S. Attorney John Durham is conducting an investigation into the unmasking requests by Obama administration officials and the criminal leaks.
Strzok was fired in 2018 and one year later filed a wrongful termination lawsuit. In the face of repeated insults by President Trump, Strzok warned in February that he will “have a great deal more to say about the president’s attacks on those with responsibility for holding him accountable.”
Former Rep. Trey Gowdy recently told Fox News that Strzok might very likely be a target of Durham’s investigation into the Russia investigation after Barr said “some” of the people his hand-picked federal prosecutor is scrutinizing would be familiar to the public.