Liberals, Enough With Your Logan Act Histrionics

In liberal land, Speaker of the House John Boehner is guilty of it. Sen. Tom Cotton and the 47 Senate Republicans signatories of his letter to the Islamic Republic of Iran outlining the constitutional dynamics of our government are surely guilty of it: violating the Logan Act.

So, what is the Logan Act? Besides a brief mention in the 2007 films "Charlie Wilson’s War" starring Tom Hanks, the law prohibits private citizens from engaging in unauthorized negotiations with foreign governments. The impetus for this law dates back to 1798. Dr. George Logan, a state legislator, traveled to France in order to secure an end to the Quasi-War, the undeclared, unofficial war between France and America. It was mostly relegated to sea warfare, but this conflict also gave birth to another set of horrific laws called the Alien and Sedition Acts. The latter would almost certainly be found unconstitutional today, but that’s for another time.

Here’s the text of the law:

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.

This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.

Indeed, one almost has to feel embarrassed by the scale of the petitioners’ credulity. For a start, the Logan Act almost certainly does not apply to open letters that are penned by representatives from the Senate — which body, we might remember, enjoys a constitutionally enumerated role within the nation’s foreign policy. And, even if it did apply, the inevitable legal challenges would swiftly prevail. In a widely cited analysis, American University’s Steve Vladeck has proposed both that the act is “unconstitutionally vague” and that it would be “unlikely to survive the far stricter standards contemporary courts place on such content-based restrictions on speech.” Brazile’s bluster to one side, it is no accident that, in its entire 216-year existence, the measure has never been used to convict anyone. It will not be used in 2015.

Over at the Huffington Post, Monica Bauer notes bluntly that she has not seen “a single Constitutional Law professor say this is a real thing,” and “for good reason.” That reason: It isn’t. Instead, Bauer suggests, the charge is being drummed up as “click bait for liberals” by the more irresponsible voices within “left-wing media” — that is, by cynics who have not set out to “educate or help,” but only “to raise money.” Bauer is correct, of course.

Law professor Eugene Volokh wrote in his blog–the Volokh Conspiracy–, which is featured in the Washington Post that the Logan Act is also constitutionally questionable. He admittedly said is not an expert with this law, so he asked three of his colleagues Professor Steve Vladeck of American University, Professor Michael Dorff of Cornell, and Professor Marty Lederman of Georgetown to offer their input.

Besides addressing the constitutional question and how members of Congress didn’t violate the Logan Act with the letter, Vladeck also brought up how the legal doctrine “desuetude," which probably kills any debate regarding the application of this law. In short, if a law isn’t successfully invoked in the courts after an extended period of time, it becomes virtually inapplicable [emphasis mine]:

[1.] [Under the Act,] the citizen must act “without authority of the United States.” Although most assume that means without authority of the Executive Branch, the Logan Act itself does not specify what this term means, and the State Department told Congress in 1975 that “Nothing in section 953 … would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.” … Combined with the rule of lenity and the constitutional concerns identified below, it seems likely that … courts would interpret this provision to not apply to such official communications from Congress.

[2.] It seems quite likely, as one district court suggested in passing in 1964, that the terms of the statute are both unconstitutionally vague and in any event unlikely to survive the far stricter standards contemporary courts place on such content-based restrictions on speech….

[3.] [T]he Logan Act has never been successfully used (indeed, the last indictment under the Act was in … 1803). Although most assume this is just a practical obstacle to a contemporary prosecution, it’s worth reminding folks about “desuetude” — the legal doctrine pursuant to which statutes (especially criminal ones) may lapse if they are never enforced (interested readers should check out a fantastic 2006 student note on the subject in the Harvard Law Review). If ever there was a case in which desuetude could be a successful defense to a federal criminal prosecution, I have to think that this would be it.

Professor Dorff touched upon the allegation that Rep. Nancy Pelosi violated the act when she visited Syria in 2007, while Professor Lederman offer his thoughts as well. But, all, directly or indirectly, noted that the law has fallen into the desuetude category. Pelosi will never be indicted even if she did violate the act in 2007; Dorff lays out her hypothetical defense as well. And the First Amendment concerns could be applied, wrote Lederman but are irrelevant because the law has never been really used; therefore, desuetude is referenced again.

So, liberals clamoring about the Logan Act, STOP! Just … just stop.

Point & laugh --> MT @donnabrazile: File charges against the Senators in violation of The Logan Act in attempting to undermine nuclear deal
— Guy Benson (@guypbenson) March 12, 2015

Liberals, Enough With Your Logan Act Histrionics

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