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AP Explains: The obscure law in spotlight after Flynn's call

February 15,2017 13:18

WASHINGTON — Michael Flynn's conversations with a Russian diplomat roiled the White House and put a spotlight on a little-enforced law prohibiting U.S. citizens from trying to influence a foreign government in disputes with the United States.

Drew Angerer/Getty

Michael Flynn's resignation on Monday from his post as national
security adviser to President Donald Trump, which comes after
about three weeks on the job, has placed the spotlight on another
White House official: Trump's top lawyer.

Multiple outlets reported Monday that former acting Attorney
General Sally Yates and a senior career national security
official told Donald McGahn, White House counsel, in late January
about strong concerns related to Flynn's communication with a
Russian ambassador.

Yates said she believed Flynn misled senior administration
officials about his December phone call with Russian Ambassador
Sergey Kislyak, during which Flynn
reportedly urged Kislyak to not overreact to the latest round
of sanctions imposed by President Barack Obama, who levied them
in response to Russia's interference in the 2016 US election.

The acting attorney general warned that Flynn was perhaps
vulnerable to Russian blackmail, sources told The Washington Post.

Flynn had told Vice President Mike Pence that he did not discuss
the Obama administration's sanctions on Russia with Kislyak.
Pence later repeated Flynn's claim in a CBS News interview.

But The Post reported that it was unclear what McGahn, who had
served as Trump's top campaign lawyer, did with the information
Yates and another official provided him.

"It's unimaginable that the White House general counsel would sit
on it [and] not tell anybody else in the White House," David
Gergen, who worked in the Nixon, Ford, Reagan, and Clinton
administrations, said during a Monday interview on CNN.

"In every White House I've ever been in, this would go to the
president like that," he added, snapping his fingers.

Drew Angerer/Getty

Jack Goldsmith wrote in Lawfare on Tuesday that the crucial
question moving forward will be "what McGahn did with this
information, and when, and why."

As Goldsmith says in his post, this is only the latest White
House firestorm involving McGahn.

Others include the several ethical controversies that have
surrounded the administration since Trump won the November
election, and the botched rollout of Trump's executive order that
banned travel to the US from seven majority-Muslim nations.

"There were early indications that McGahn ignored the usual
protocols for ethics vetting of Cabinet officials," Goldsmith
wrote. "Since then the problem has only grown worse and has drawn
bipartisan ire. One wants to know what McGahn's role has been in
ensuring (or not ensuring) compliance with relevant ethics rules,
and (as several Democrat senators asked last week) what 'clear
and specific steps the White House is taking to prevent further
violations of government ethics laws by members of the White

On the travel ban, Goldsmith wrote that one of McGahn's
responsibilities was to coordinate with multiple agencies on
legal policies and that he should have been able to anticipate
and correct any problems with the executive order before it was

"And he should have advised the president after his first
anti-Robart tweet, and after the other more aggressive ones, that
the tweets were hurting the president's legal cause," he wrote, referring to US District Judge
James Robart. "If McGahn did not do these things, he is
incompetent, and perhaps we can attribute impulsive incompetence
to the president. But if McGahn did do these things — if he tried
to put the brakes on the EO, and if he warned his client about
the adverse impact of his tweets — then he has shockingly little
influence with the president and within the White House."

Goldsmith wrote that if the New York Times report about Trump
being angry he "was not fully briefed" on the details of an
executive order about the organization of the National Security
Council and its principals committee is accurate, that too falls
on McGahn.

Former US Ambassador Norman Eisen, who served as Obama's top
ethics lawyer during his first term, summed up the problems
facing McGahn.

"[Two] biggest Trump debacles so far were both in WH Counsel
McGahn's wheelhouse: Muslim ban EO & Yates telling him about
Flynn convos," he tweeted.

And MSNBC's "Morning Joe" host Joe Scarborough — whose words
carry weight with Trump, as he is a frequent viewer of the
program — tweeted that McGahn is as good as gone after the
Flynn debacle.

"All the knives are out for him," Scarborough wrote. "I wouldn't be surprised if he's
gone in a week."

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