(THREAD) It's long been *central* to conservative jurisprudence and legislative philosophy that if you don't like an act of Congress, don'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's put aside 3 *critical* facts:
1⃣ Trump has publicly supported the use of the Logan Act for criminal investigations.
2⃣ The FBI was also investigating Flynn for criminal FARA violations.
3⃣ The FBI counterintelligence probe of Flynn justified questioning him.
1⃣ Trump has publicly supported the use of the Logan Act for criminal investigations.
2⃣ The FBI was also investigating Flynn for criminal FARA violations.
3⃣ The FBI counterintelligence probe of Flynn justified questioning him.
2/ The GOP doesn't want you to remember that its leader supports the use of the Logan Act to criminally investigate executive-branch officials. The GOP doesn'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't want you to remember that if you have an active FBI counterintelligence investigation on someone, you can question them even if you *don't* have an active criminal investigation on them (though *here*, the FBI *did* in fact have such an investigation ongoing).
4/ The GOP doesn't want you to recall that in January '17 the FBI hadn'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's *closed* case.
5/ Instead, anonymous cowards like @JohnWHuber—who won'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's a winner for them even though they're *jettisoning their principles* to make their case.
6/ In making the claim we should ignore laws on the books that've been used to indict people before—an unprecedented position for Scalia clones like @baseballcrank to take—the right isn'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't want to risk defending the Logan Act with any seriousness.
8/ On some level, they'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'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's actions abroad in 2015 and 2016 constituted bribery and fraud.
10/ But if a federal criminal statute is on the books; if it'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't even serve as a predicate for an investigation is *insane*.
11/ The GOP wants you to forget where things stood in January '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'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've been under investigation for Treason—but it wasn't, so he wasn'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'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.
17/ Instead, the Flynn case would've struck FBI agents as *the* case (in all U.S. history) that *best* explained why the Logan Act not only existed; not only had been used in the past; but had *persisted* without being repealed—which could've happened at any time—for *218 years*.
18/ Imagine, for a moment, a wildly conservative FBI agent working on Flynn's case—a Scalia lover who adores conservative jurisprudence and legislative philosophy. *That* guy would've been the *most* likely to say "If it's on the books and not repealed, it has full force of law."
19/ Mind you, not that *any* of this was really anything *any* FBI agent had to think much about—given the counterintelligence investigation, the FARA case, and the fact that the FBI was merely in an *investigatory* (rather than charging) phase of looking at any Logan Act crimes.
20/ And again, while bribery and fraud *also* could have been (and should have been, and *may* have been, we don't yet know) considered as well, if you look at Flynn's conduct and ask the good-faith question, "Is this illegal?" the answer from the on-the-books Logan Act is *yes*.
21/ A recently released trove of documents revealing the contemporaneous investigative strategy of FBI agents unearths *absolutely nothing nefarious* in their discussions—unless you know nothing about investigation, which fortunately for the GOP almost none of its voters care to.
22/ FBI agents *had* to work through several key—but also routine—questions: OK, so we have to keep this open case open because we have new evidence, but do we confront Flynn first with the fact that he's lying, or let him say his peace and *then* confront him? *Basic* questions.
23/ The strategy agents employed was a common—again, routine—strategy. And Flynn was given *every* opportunity to *not* commit yet *another* crime (above bribery, fraud, FARA, Logan Act and other offenses). But Flynn *arrogantly* committed a federal offense. He felt *invincible*.
24/ That's probably why Flynn admitted his guilt. That's probably why, when he went through his allocution with the judge, he admitted that he had committed a crime, admitted he knew he was committing a crime at the time, and *absolved* the agents of *any* wrongdoing against him.
25/ Little of this, as you can see, has to do with the Logan Act. But I strongly disagree with any lawyer who thinks defenders of the process employed here—a routine one—must budge an inch on the Logan Act issue. That's done for self-preservation—not in defense of the facts. /end
NOTE/ Tweet #17 should begin with the word "indeed," not "instead."
