March 10, 2015 (San Diego) 47 United States Senators have written an open letter to the leadership of Iran. A few pundits have questioned the political meaning of this letter. We will concentrate on the legalities. I am betting most people have not heard of the 1799 Logan Act. If you have, either you are a Law Student, or a political animal, or a historian.
The context of this Act was the undeclared war between the United States and France in the closing years of the 18th century. The State Department official history has this snippet in there, which makes the legalese far easier to understand. “Congress also passed the Logan Act in response to the visit of a pacifist Quaker, George Logan, who conducted negotiations with Talleyrand as a private citizen and returned to the United States announcing Talleyrand’s peaceful intentions. The Logan Act criminalized unauthorized diplomatic negotiations.”
So what about now? Here is what the Act says.
Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.
Most violations involve the spirit of it, and are much harder to prove. Some pundits have argued that the invitation that Speaker John Boehner gave to Benyamin Netanyahu was a violation of the Logan Act. This is much harder to prove since the U.S. Congress invites members of foreign governments to address them regularly. So there are many other occasions in which we could argue the Logan Act was violated. I might add, by Speakers from both parties.
As Peter Spiro argues in Opinio Juris on this particular event, this is what makes it different:
- a correspondence with a foreign government (whether direct or indirect, in the form of an “open letter”, matters not),
- without the authority of the United States (it enjoys no imprimatur from the executive branch nor, for that matter, from Congress as an institution),
- with the pretty clear intent “to influence the measures or conduct of” the government of Iran in relation to a controversy with the United States.
All these happened. There is no doubt about it. Our question is not only will anybody prosecute, or will that become a political circus? The Logan Act was passed to prevent a single person negotiating in the name of the United States that was not authorized to do so.
First off, we have rumblings of Logan Act prosecutions every so often. For example, Former Speaker Nancy Pelosi had noises on these grounds back in 2007. At the time she met with Assad, not quite our pal and friend, but not our open enemy.
Then you have this jewel from the National Review when then Senator Barack Obama allegedly tried to negotiate a slowdown in the pull back of troops, while the White House was trying to negotiate a Status of Forces Agreement with the Iraqis.
I bring this up because yes, it does seem that 47 U.S. Senators are undercutting the President of the United States. Foreign relations are supposed to be the purview of the Executive. Even CNN is talking about this, and pointing out the same thing I am. This law has been on the books for 216 years, with exactly one prosecution: That would be Mr. Logan to be exact.
The problem is that while this seems like truly crossing a line, none who understands the history of the Logan Act and how it has never really led to any prosecutions, expects anything to happen. Those 47 U.S. Senators have nothing to fear, or sleep to lose. They do not even have to call their lawyers to see if perhaps they should lawyer up.
Will we keep hearing of these violations? Yes. Both sides will continue to bring this Act out of storage every time they want to point and laugh at the other side. What gives us pause is that this actually seems to be a pretty egregious violation. We just don’t expect the Department of Justice to do anything about it, beyond reading a few pages on the Internet and maybe chuckling about it.
Should people become familiar with it? Insofar as it helps to keep score, I suppose. Will this be the last time the Logan Act will be brought out from storage, dusted off, and mentioned in passing? Nope. As the history of the last ten years proves, both sides use it to score political points.
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