Did Republicans violate the Logan Act?

I’ve been hearing some buzz about whether House Speaker John A. Boehner, when he invited Israeli Prime Minister Benjamin Netanyahu to address Congress, and the 47 Republican senators who wrote a letter to Iranian leaders violated the Logan Act. I’m not an expert on the subject, and don’t have an expert opinion. But I thought I’d canvass some opinions from scholars who have focused on this question (which is quite separate, of course, from the question whether the speaker’s and senators’ actions were wise).

1. First, what’s the Logan Act, you ask? Unusually for statutes (as opposed to judicially crafted doctrines, such as the Miranda rule), the Logan Act is named after the supposed bad guy: Dr. George Logan, a state legislator who traveled to France in 1798 to try to negotiate an end to the France-America Quasi-War. Congress didn’t go for that, and enacted the statute that now appears at 18 U.S.C. § 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.

(As it happens, a couple of years later Logan was appointed and then elected to the Senate, and apparently tried and failed to get the Logan Act repealed.)

2. So what does the Logan Act mean today, and is it even constitutional, given modern understandings of the First Amendment? A few reactions:

a. First, Prof. Steve Vladeck (American Univ.) has a post on the subject, which strikes me as likely correct on the law. Some excerpts:

[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.

(Nope) wrote: »

I wish that were the case, but this is a political party who nearly elected Palin to the executive office. Republicans are known for not giving a ? and they will rationalize and deflect this ? until any potential voters who care have albeit forgotten about it. Honestly, this is just the most egregious ? they've done lately--the republican base will shrug this ? off like racism, women's rights, and global warming.

It is yesterday’s news that 47 Republican senators signed a letter darkly warning Iran’s Supreme Leader that they will be political forces to be reckoned with long after President Barack Obama leaves office. But the spin is wrong: All but seven GOP members in the Senate ought not be described as “GOP hard-liners” — when 85 percent of Republicans in the Senate do something, they are the main body, not just the hard edge of it.

That said, I think it was a mistake for the Republicans to send the letter. It looks bad for Congress to undercut the president during the negotiations with Tehran; moreover, it is unlikely to appeal to Americans who are fed up with Washington and want their elected representatives to work together and solve the country’s problems. Republicans in the Senate would argue that Obama is on the brink of a deal with Iran that could be disastrous to America’s national security, and that by skirting Congress’s advise-and-consent role, he left them no recourse.

But the senators underestimate their own strength in preventing the president from carrying out an executive agreement — they can simply use the next legislative vehicle to remove his waiver authority and the sanctions on Iran remain in place. And if a bad deal is struck, there will likely be winnable Democrats to make the sanctions veto-proof.

Before yesterday’s letter, Republicans seemed to have substantial Democratic support for legislation requiring the president to submit any agreement with Iran to the Senate for its consent; having bipartisan acknowledgement that Obama’s executive actions infringed on the prerogatives of Congress would have been a very powerful statement. But by firing off a personal note to Iran’s Majlis, Republicans in the Senate may have sacrificed that prospect. When Republicans took control of Congress in November, their strategy was supposed to make President Obama irrelevant by doing well what Congress does well.

The leadership committed itself to an agenda addressing the concerns of middle-class America. Yet they have allowed Obama to bait them into a sharp-edged discussion of foreign policy instead.

The leadership committed itself to an agenda addressing the concerns of middle-class America. Yet they have allowed Obama to bait them into a sharp-edged discussion of foreign policy instead.

Whatever Senate Republicans’ mistakes, and angry as the president might be about legislators undercutting him during the endgame of a difficult negotiation, he might want to consider his complicity in the matter: Had he not flouted the requirement for the president to submit international agreements to the Senate for its consent to ratification, Congress would get its chance once the deal had been completed. Obama should reflect on that, particularly since going forward he’s bluffing with a weak hand. If his point was to prove he’s still relevant, he’s succeeded. If his point was to negotiate an end to Iran’s nuclear weapons program, he’s provoked a mutiny that will make the policy difficult to carry out.

The U.S. Congress is famously truculent on international obligations generally, and trade negotiations specifically, often refusing its consent to ratification, or muddying the waters with treaty-changing amendments. President Woodrow Wilson was denied his treaties bringing World War I to an end. The Strategic Arms Reduction Treaty II was withdrawn from Senate consideration when it became clear it lacked the votes to gain consent. The McKinley administration’s 1900 treaty with Great Britain over the Panama Canal was so altered by amendments to eviscerate its meaning that Britain rejected the deal.

But savvy U.S. presidents use the threat of congressional abandonment in order to negotiate better terms for the United States. In the midst of the 1845 crisis with Britain over the boundary of the Oregon territory (which then encompassed Washington state), President James K. Polk requested (and thunderously received) the Senate’s consent to abrogate the existing treaty with Britain, showing the breadth of public support for his side of the argument. President Barack Obama took the exact opposite approach, and by doing so — even before the 47 Republicans wrote to Ayatollah Khamenei — he’d already telegraphed his domestic political weakness to Iran.

(Nope) wrote: »

I don't make the claim I detest partisanship, so miss me with that.

(Nope) wrote: »

You can make a false equivalency and say "all of them are terrible"