The Logan Act makes eminent good sense, and it should be enforced.
18 U.S. Code § 953
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.
For background and consideration of whether the Act applies to Michael Flynn and Donald Trump, see Charlie Savage, “The Logan Act: How Flynn’s Exit Revived Interest in a Dusty, Old Law,” New York Times, February 14, 2017.
The fact that it has not been enforced in the past is no reason not to enforce it now. Undoubtedly, it has had a deterrent effect in the past. In recent times, the major occasions when it has been ignored, that we know about, are when Richard Nixon had back-channel negotiations with the North Vietnamese aimed at preventing Lyndon Johnson’s peace negotiations in Paris from bearing fruit. After Nixon was elected, seven more years of the Vietnam War ensured, with many thousands of additional U.S. and Vietnamese deaths. The Logan Act was probably not enforced because the facts of the back-channel negotiations were not publicly known, and because the Justice Department under John Mitchell was tightly controlled by Richard Nixon. Readers will remember or have read about the “Saturday Night Massacre”.
In the case of Nixon and the Vietnam Peace negotiations, it is clear that it would have been in the nation’s interest if the Logan Act had been applied, or even better if Nixon had had a reallistic appreciation that it might be applied.
The second case that is often cited is that of Ronald Reagan, who had back-channel negotiations with the Iranians aimed at preventing the release of the U.S. hostages who were being held in the U.S. Embassy, before the election and then before Reagan took office. When he did take office, they were released.
Again, it would certainly have been in the nation’s interest if Reagan had not interfered in Jimmy Carterś efforts to get the hostages released. Reagan’s behind-the-scenes negotiations were thoroughly illegitimate, and served to undermine the integrity of the electoral process which led to his election.
Now we are face3d with credible allegations that Donald Trump engaged in behind-the-scenes conversations with the Russians aimed at affecting the successful implementation of the sanctions imposed by Barack Obama, the lawfully-elected president of the United States in office at the time. Certainly, to suggest to the Russians that the Trump administration would relax the sanctions undermined these very sanctions. Again, it would have been very much in the nation’s interest if Trump and Michael Flynn, his national security adviser, had had a realistic appreciation that the Logan Act might be applied if they acted to undermine the foreign policy of the then sitting president.
The logic of the Logan Act is irrefutable. The practical problem in its application may be that we have not had a sufficiently independent Attorney General willing to apply the law. We should seek remedies for that shortcoming, perhaps by establishing an independent counsel to consider cases where those suspected of such criminal activities are members of the winning party in presidential elections.
Arguments have been and will be made that it would be impractical to enforce the Logan Act, because it could be interpreted broadly to include all sorts of activities we wouldn’t want to prosecute. This is a typical lawyer’s argument, and a typical prosecutor’s challenge. In practice many criminal statutes could be interpreted in an overbroad fashion, and it is always the job of the prosecutors to proceed against those individuals who have violated the statute in its core meaning.
Here, the core meaning of the Logan Act would clearly encompass Michael Flynn communicating with the Russian Ambassxador to downplay the significance of sanctions imposed by the Obama administration in response to Russian intervention in the U.S. elections.
If Trump himself violated the Logan Act, his violations should also be prosecuted. The Act establishes that a violation of its prohibitions is a felony.
If we are not going to prosecute one felony, in the most egregious of cases, who is to say what other felonies might not be prosecuted, such as Flynn’s alleged lying to the FBI?
The statute makes eminent good sense, If it did not exist, we would need to enact it.
It is a felony on the books today. It should be enforced. If it is not, we enter onto the slippery slope of deciding which felonies to prosecute in egregious cases, and which not. On that slope, at some point we will lose the rule of law, our constitutional government in accordance with the law.
Spirit of Publius