Updated at 6:11 p.m. ET
Wash, rinse, repeat: The cover-up is always worse than the crime.
As much change as President Trump has tried to bring to Washington in his eventful first weeks as president, he hasn’t yet altered the enduring truth in that Watergate-era cliché. Michael Flynn discovered it anew on Monday night when he submitted his resignation as national security adviser. It wasn’t that Flynn discussed sensitive matters of policy with the Russian ambassador before he took office that led to his ouster, press secretary Sean Spicer told reporters over and over again on Tuesday: It was the fact that he lied about it to Vice President Mike Pence and other senior members of the Trump administration that caused the president to sack him.
That cover-up may cost Flynn way more than his job if the FBI determines that he lied to its investigators in the same way he misled Pence about his discussions with the Russian ambassador during the presidential transition. The New York Times reported on Tuesday afternoon that the FBI interviewed Flynn in the days after Trump became president last month and that he was “not entirely forthcoming.” The bureau had been investigating whether his post-election phone call with Russian ambassador Sergei Kislyak violated the Logan Act, a 1799 prohibition on private citizens corresponding with foreign governments “in relation to any disputes or controversies with the United States.” But if history is a guide, Flynn’s conversation with FBI agents at the White House could cause him more legal trouble than his phone call with Kislyak in November.
No American has ever been successfully prosecuted for violating the Logan Act in the 217 years since Congress enacted it. But plenty of high-ranking government officials have gone to jail or suffered other legal penalties for perjury and obstruction of justice. Just ask John Poindexter, the Reagan-era national security adviser who was found guilty of lying to Congress before his conviction was thrown out on appeal. Or Lewis “Scooter” Libby, the former top aide to Vice President Dick Cheney who was convicted of perjury, obstruction of justice, and making false statements after he lied to the FBI agents investigating the Valerie Plame affair. Or William Jefferson Clinton, who broke no law by having an affair with Monica Lewinsky but who was impeached by the House of Representatives for lying about it. The list goes on and on.
Flynn has now acknowledged “having inadvertently briefed the vice president-elect and others with incomplete information regarding my phone calls with the Russian ambassador.” That would not be a crime. But Spicer used a stronger term at his briefing on Tuesday, telling reporters that Flynn had “misled” Pence and other members of the administration, including himself, about his call with the Russian ambassador. The White House concluded that Flynn had not violated the law by speaking with Kislyak but that his dissembling, or misremembering, of the law had led to “an erosion of trust” between him and the president. (Meanwhile, a report Tuesday evening from NBC News alleges the White House withheld concerns about Flynn from the vice president for 15 days.)
Indeed, Spicer went to great lengths on Tuesday to argue that it was Flynn’s cover-up, and not his conversation with Kislyak, that bothered Trump. He said it was entirely appropriate for Flynn to discuss policy, even the possibility of lifting sanctions against Russia, as part of his efforts to prepare for the new administration and to assume the critical post of national security adviser. Left unanswered, however, was a question posed by Spicer’s account: If Flynn’s discussion with the Russian ambassador was completely appropriate, why did he feel the need to lie about it?
The Flynn case is another politically charged investigation on the desk of FBI Director James Comey, who infuriated Democrats first by calling Hillary Clinton’s handling of her private email server “extremely careless” and then by sending a letter to Congress days before the presidential election announcing that the bureau was reviewing more emails in connection with its investigation. Trump made a point of asking Comey to stay on as director, and he’s said nothing about the Flynn investigation. Perjury remains a difficult charge to prove in court because prosecutors must demonstrate that a person knowingly intended to deceive, and Flynn has already suggested his accounts to Pence and others were the result of a faulty memory.
The FBI declined to comment on Tuesday afternoon. But it apparently knows what Flynn said to Kislyak, having access to transcripts and recordings of the call. An equally important question now is: What did Flynn say to the FBI, and does the FBI—and Comey in particular—think he lied?