How to Think About the Michael Flynn Scandal

by Benjamin Studebaker

A few people have asked my opinion on the Michael Flynn scandal. As I understand it, anonymous sources from within the intelligence community have leaked to the press that Flynn, President Trump’s National Security Adviser, was in contact with the Russian government prior to Trump’s inauguration and lied about his connections. Further leaks claim that Trump knew about this, and that other members of his team were also in contact with Russia. Flynn has resigned. If there was contact, this contact would be illegal under the Logan Act, which prohibits private citizens from conducting US foreign policy. Violators of the Logan Act can go to prison for three years. Many Democrats want to use the Logan Act to go after the Trump administration, while the Trump administration prefers to emphasize the illegality of the leaks:

This is not the first time a US Presidential campaign has allegedly violated the Logan Act. In 1968, Richard Nixon sabotaged the Johnson administration’s peace talks with North Vietnam by communicating to the South Vietnamese that they would get a better deal if they waited for Nixon to take office. Indeed, new evidence indicates that Nixon himself was personally involved–he told an aid that they should find a way to “monkey wrench” the talks, and notes from Nixon’s future Chief of Staff, H.R. Haldeman, state that Nixon gave instructions that a friendly intermediary should keep “working on” South Vietnamese leaders to keep them from agreeing to any deal.

Johnson knew of the Nixon’s campaign’s interference through state surveillance and privately accused Nixon of treason, but he never took the accusations public, and Nixon never faced consequences for this. His resignation was tied to the much more infamous Watergate scandal. That scandal was fuelled by leaks from “Deep Throat”, who turned out to be Mark Felt, who was with the FBI at the time.

There are six primary paths by which one might legally or illegally drive Trump from office against his will:

  1. 2020 or 2024 Election
  2. Impeachment
  3. Assassination
  4. General Strike
  5. Military Coup
  6. Civil War

Democrats are looking at this like it might get them to impeachment. But for Trump, this feels more like an attempt at a military coup. This is because the leaks are coming from within the intelligence community–Trump thinks the intelligence community has a grudge against him and is deliberately leaking against him in an attempt to destroy him. The intelligence community is part of the military, so from his point of view they are leaking against their commander in chief. This would make the leaks not mere whistleblowing, but a form of mutiny. It would also mean that parts of the military are attempting to undermine an elected president.

Deep Throat was with the FBI, which is part of the Department of Justice, not the Department of Defense. One might plausibly argue that he didn’t count as part of the military. But if the leaks come from the CIA, which is independent, or the NSA, which is part of the DoD, it would be harder to claim that they’re non-military. If people in the CIA or NSA are deliberately leaking against the civilian government so as to cause the president to lose electoral support or get impeached, this would undermine civilian control over the military. If that trend were to continue, presidents would need to appease the military to retain its support, turning the military into a major interest group and potential support base.

Historically, the reliance of governments on military support tends to result in the military extracting rents from public. Roman Emperors routinely were forced to raise the wages of their soldiers and provide them with special gifts to retain their support. These wages and gifts were paid for by the Roman taxpayer and collected at sword point by the military. Over time, this allowed the military to pillage the Roman economy and exploit the Roman people, diverting increasingly large percentages of Roman output to itself. This came to a head during the Crisis of the Third Century, when a series of “Barracks Emperors” emerged, backed by various factions of the Roman army, many of which sought to use their commanders to enrich themselves. Between 235 and 284 CE, 26 different people claimed the imperial title, and most of them were generals.

When it comes to military intervention in US politics, the two parties are highly inconsistent in their attitude. When James Comey reopened the FBI’s investigation into Hillary Clinton’s e-mails, many Democrats accused Comey of interfering in the election. They made these accusations even though Comey is Director of the FBI, not the CIA or NSA. Trump was pleased about that:

But now that Trump is on the receiving end, the positions of the parties have reversed. Most Americans don’t seem to have a clear view about whether it’s okay for intelligence agencies to involve themselves in domestic politics when they believe a president or presidential candidate poses a threat to the interests of the country (or, more narrowly, the interests of the specific agency, the DoD, or the military-industrial complex as a whole). We tend to view military leaks as noble whistleblowing when those leaks further our own political ends and as dangerous subverting of democracy when they contradict those ends. Our view of the procedural importance of a strong firewall between the military and the civilian government changes depending on whether or not we think the military is on our side.

The lesson of history is that it is dangerous to rely on the military to be on our side in the absence of strong regulation by a civilian government. But this doesn’t mean it’s never right to have the military get involved in politics–if the soldiers of Nazi Germany had defied Hitler’s orders, that would have been a great thing for Germany and the world. Our level of comfort with these leaks will depend on which scares us more–the military-industrial complex or the Trump administration.

There have been certain situations where I’ve reluctantly lent support to coup attempts. In Egypt and Turkey, where weak constitutions have enabled elected governments to tear down the barrier between church and state and use state power to impose theocratic policies, I’ve argued that military rule might be preferable. But this is the exception rather than the rule, and it is an exception I made only because the governments of Morsi and Erdogan themselves demonstrated a willingness to silence dissent and discriminate against religious and political opponents. They used their political power to put their opponents at an institutional disadvantage, leaving them with no legal means of challenging the government.

We still have every reason to think that Trump can be dealt with through legal means. The judiciary’s resistance to his immigration executive order has been stronger than I anticipated–this indicates that the institutional checks on Trump’s power are still functioning quite well. So while I’d like to see Trump go, I’m not convinced this is the right way to get rid of him. We should resort to illegal means only when we are absolutely convinced that our constitution is no longer adequate and only when we have alternative institutions in mind which we have sufficient reason to believe are superior. While I’m sympathetic to arguments that our constitution could use an update, I don’t see Trump’s opposition offering a clear, coherent institutional alternative, and I’m not interested in eroding the barrier between the civilian government and the military just to make Mike Pence president. In my view he’s no great improvement.

But if you think Trump poses a unique threat–that he is a Hitler figure in waiting, or at least in the same category as Erdogan–your priorities might differ.