Executive Power

The Logan Act and its Limits

By Daniel J. Hemel, Eric A. Posner
Thursday, December 7, 2017, 12:07 PM

Former national security adviser Michael Flynn’s guilty plea in federal court last week has awoken interest in the long-dormant Logan Act. We argued in a New York Times on Monday that members of the Trump transition team, including Flynn, ran afoul of that statute in December 2016 when they urged Russia to veto a U.N. Security Council resolution condemning Israeli settlements in East Jerusalem and the West Bank. have raised the prospect of Logan Act liability as well.

President Trump’s defenders have responded that the Logan Act is “” to the point of being unconstitutional. have expressed varying degrees of sympathy for this position. Yet as the Supreme Court has , “It has long been our practice ... , before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.” Here, we consider whether the Logan Act can be limited so as to address legitimate concerns about its breadth.

Based on the text of the Logan Act, its legislative history, and the executive branch’s interpretation of the statute in the past, we believe that the Logan Act is indeed susceptible to a narrow construction. We explain how courts could and likely would construe the statute so as to avoid unconstitutional applications. The Logan Act can be understood to prohibit secret efforts aimed at undermining the current administration’s foreign policy without also criminalizing a wide array of political interactions between U.S. citizens and foreign officials.

While this interpretive exercise is inspired by the ongoing controversy over the Trump transition team’s contacts with Russia, we should stress that this is not the first—and almost certainly not the final—time that the Logan Act will become the topic of national debate. Throughout U.S. history, allegations of Logan Act violations have been used to tar (though never to jail) political opponents. In retrospect, a few of these allegations seem to be well founded; in many other cases, however, such allegations turn out to be baseless when the Logan Act is interpreted in light of its text, history, and background American legal doctrines. Beyond the present debate regarding Trump and Russia, further reflection on the statute serves the purpose of clarifying the Logan Act’s reach and reducing the risk that it will be used as a rhetorical cudgel against individuals whose conduct does not break the law.

 

The Law

The Logan Act is named for a Philadelphia doctor, George Logan, who traveled to Paris in 1798 at a time of heightened tension between the United States and the revolutionary government in France. Logan’s mission was arguably a success: France lifted an embargo against the United States and releasing American ships and sailors. However, former President George Washington, then-President John Adams, and members of the Federalist Party who were hostile to France condemned Dr. Logan upon his return.

Federalists in the House of Representatives responded with legislative action. Rep. Roger Griswold, a Connecticut Federalist, a bill to “guard by law against the interference of individuals in the negotiation of our Executive with the Governments of foreign countries.” Griswold said that he “hoped no occasion would ever arise for bringing into operation a law of this kind; but if it should, it would be well prepared to meet it.”

Griswold’s bill quickly passed the House and the Senate, and President Adams signed it into law in January 1799. Consistent with Griswold’s expressed intention, the law has been invoked only rarely: There are only two known instances in which individuals have been indicted for violating the act, the last of which came in 1853, and neither indictment resulted in conviction.

Yet the law remains on the books today, and its wording has changed only trivially in the last 218 years. [For excellent overviews of the Logan Act’s history and reflections on its current state, see Drew Tedford, Comment, , 32 Hous. J. Int’l L. 733 (2010); and Daniel B. Rice, , 55 Harv. J. on Legis. (forthcoming 2018).]

The statute, codified at , now reads as follows:

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.

Some of the phrases in the Logan Act sweep broadly (e.g., “wherever he may be”; “directly or indirectly”; “any foreign government”). But others narrow the statute’s scope. We focus here on seven ways in which statutory text, legislative history, and Executive Branch interpretations potentially limit the Logan Act’s reach.

  1. “Without authority of the United States.”

The act does not apply to U.S. citizens who obtain the current administration’s approval before approaching foreign officials. For example, then-Rep. Bill Richardson did not violate the Logan Act when, at the behest of the Clinton administration, he to Cuba, Iraq, North Korea, Serbia, and elsewhere to negotiate with U.S. adversaries. Yet the “authority” exception extends beyond diplomatic envoys. An earlier version of the statute used the phrase “without the permission or authority of the Government of the United States,” and the shortening of that phrase in 1948 does not seem to have been intended to effect a substantive change. Interpreting the word “authority” to include legal permission is thus consistent with the statute’s history (as well as with one of the term).

The executive branch on more than one occasion appears to have endorsed the idea that the term “authority” encompasses more than just diplomatic missions undertaken at the administration’s urging. In 1961, former First Lady Eleanor Roosevelt, labor leader Walter Reuther, and others were accused of violating the Logan Act when they spearheaded an effort to secure the release of prisoners held by Cuba following the failed Bay of Pigs invasion. The Justice Department dismissed those allegations on various grounds, including that the citizens acted with the knowledge and tacit assent of President John F. Kennedy’s administration. And again in 1975, when Sens. George McGovern and John Sparkman were accused of violating the Logan Act by initiating contact with Cuba’s communist regime, the State Department under President Gerald Ford their actions on similar grounds. The assistant secretary of state for congressional relations at the time, Robert McCloskey, said that “the executive branch, although it did not in any way encourage the Senators to go to Cuba, was fully informed of the nature and purpose of their visit, and had validated their passports for travel to that country.” These two episodes suggest that when the current U.S. government implicitly or explicitly acquiesces to contacts between citizens and foreign states, those contacts do not violate the Logan Act provided that the current U.S. government is apprised of their nature and purpose.

A more difficult question is whether “authority” can be wielded by Congress as a whole or by individual members, without the signature of the president or a veto override. On the one hand, the drafters of the Logan Act sought to target those who “usurp the Executive authority” and assumed that the law would apply to them. On the other, members of Congress might argue that their power under Article I to “regulate Commerce with foreign Nations” affords them wide leeway to make contacts with foreign officials, at least where such contacts serve a fact-finding purpose. This latter view draws support from McCloskey’s statement regarding the McGovern-Sparkman mission to Cuba: “Nothing in section 1953 ... would appear to restrict members of Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.” Indeed, a lengthy historical practice of “,” tolerated grudgingly but consistently by the executive branch, goes back more than a century. On this view, then-Speaker of the House John Boehner—who was of violating the Logan Act when he invited Israeli Prime Minister Benjamin Netanyahu to speak to Congress in 2015—has a strong argument that he remains on the right side of the law. And then-Speaker Nancy Pelosi, of violating the Logan Act in 2007 when she visited Syrian leader Bashar al-Assad in Damascus, can plausibly argue that overseas fact-finding is incident to her constitutional duty to legislate regarding foreign affairs.

  1. “Correspondence or intercourse.”

The act appears to cover only two-way communications: “correspondence” (“”) and “intercourse” (“”). One-sided communication, even if directed at a foreign power, would seem to fall outside the statute’s scope. Concededly, the first Logan Act indictment—of a Kentucky farmer named Francis Flournoy in 1803—was based on a newspaper article arguing that Western states should secede and join France, but as noted, the indictment was dropped. Limiting the statute to two-way communications addresses some of the instances in which Logan Act allegations have arisen. Thus, in our view, the 47 Republican senators who sent an to Iran in 2015 asserting congressional power to block a nuclear accord did not violate the Logan Act (despite ) because their statement, though styled as a letter, was not part of any exchange or intercourse with a foreign government.

The distinction between one-way and two-way communications can be justified on purposive as well as textual grounds. Two-way communications, especially if covert, can lead to secret bargains and other quid pro quos that interfere with the president’s authority over foreign relations. Public discussion, by contrast, falls more clearly into the core of the First Amendment freedom to criticize the U.S. government and American foreign policy.  

  1. “Foreign government or ... officer or agent thereof.”

The breadth of the Logan Act depends in part on the definition of “[f]oreign government or ... officer or agent thereof.” Some guidance can be gleaned from the Justice Department’s interpretation of similar language in the . For example, the department has not considered state-owned media organizations to be “foreign agents.” (The Russian television network RT America, by the Justice Department to register as a foreign agent, is a notable exception.) Historical episodes shed further light on the phrase. President Dwight D. Eisenhower said in 1953 that Sen. Joseph McCarthy had not run afoul of the law when he urged Greek shipowners to boycott communist China; private shipowners, after all, are not officers or agents of a foreign state.

The line between other state-owned enterprises and foreign governments is inevitably fuzzy, but lenity principles weigh in favor of limiting the statute to cases that clearly fall on the “foreign government” side of the divide. Accordingly, we think that a sensible construction of the statute would limit these terms to officials of a foreign government and to agents who are clearly acting on behalf of a foreign government. An envoy sent by a foreign leader on a diplomatic mission would count. A reporter for the state-owned BBC would not.

  1. “Intent to influence ... or defeat.”

To convict a defendant under the Logan Act, a prosecutor would need to prove beyond a reasonable doubt that the defendant intended for his communications with a foreign government to influence that government’s policy or to thwart the United States’ objectives. Rep. Robert Harper, a Federalist from South Carolina and a supporter of the Logan Act, on this intent requirement during the House debate over the bill:

[W]ere I in France, after this bill should be passed, and M. Talleyrand were to invite me to sup with him, ... and he were to ask my opinion about the political relations of the two countries, I should not scruple to tell him that the conduct of his Government was highly impolitic, and to assign my reasons for the opinion. ... I should not consider myself as offending against the bill by doing so. Why not? Because I should not act with the intent which this bill fixes on as the essence of the offence created by it; the intent to interfere or intermeddle with the public relations of the two countries. It is this interference, this intermeddling, and not an accidental conversation, which the bill forbids, according to any reasonable construction of it by an American court and jury.

Indeed, not only “an accidental conversation” but an intentional one would fall outside the statute’s scope unless the U.S. citizen’s intent was to affect a foreign government’s policy in a concrete way. Thus, former basketball star Dennis Rodman most likely did not violate the statute when he traveled to North Korea and met with that country’s leader in an effort to promote “.” He could be convicted only upon a showing that he intended to influence specific North Korean actions or to defeat specific U.S. objectives. Nor could a person be convicted for airing her views to foreign officials without a reasonable expectation that she could affect policy in a concrete and immediate fashion. Thus, Jane Fonda’s to Hanoi in 1972 would not have violated the Logan Act if her intention was to influence American public opinion or the American government rather than the North Vietnamese regime.

Charles Warren, while serving as assistant attorney general under President Woodrow Wilson, sought to further clarify the statute’s intent requirement in a 1915 on the Logan Act’s scope. A defendant meets the intent requirement, according to Warren, only if “the natural and probable result of commencing or carrying on the correspondence or intercourse in question ... would be the influencing of a foreign Government” or “the defeat of the measures of the United States.” In most cases, it is improbable that a foreign government will be influenced by a communication from a private U.S. citizen acting on his own: The citizen has nothing to offer a foreign government that has resolved to cooperate with the United States or has found itself in a dispute with this country. This is likely one reason why the Logan Act has so rarely been enforced.

There are, to be sure, several important exceptions, such as billionaire businessmen and prominent religious figures. For example, Ross Perot would seem to have met the “intent to influence” requirement when he engaged in with Vietnam in the late 1980s and early 1990s in an effort to secure the release of American prisoners of war. Likewise, the Reverend Jesse Jackson likely intended to influence Cuba in a dispute with the United States when he visited Fidel Castro to negotiate a prisoner release in 1984, and one might even say that the “natural and probable result” of Jackson’s visit was to sway the Cuban regime. (President Reagan accused Jackson of violating the Logan Act but that claim the following week.) As discussed below, we think that Perot and Jackson could both assert plausible defenses based on the Logan Act’s second paragraph but likely fall within the scope of the first paragraph.

The cases in which a citizen is most likely to “influence” the policy of a foreign government involve U.S. politicians. For example, we that Richard Nixon, when he was a presidential candidate in 1968, South Vietnam to stay away from peace negotiations with the United States, the Soviet Union, and North Vietnam. This is the paradigmatic Logan Act violation (and an excellent illustration of the statute’s importance). An that Reagan’s campaign made a secret deal with Iran in 1980 to delay the release of hostages until after the election seems to have been ; but if true, it would be a clear Logan Act violation. A presidential candidate with a high probability of winning the election will likely be in a position to reward a foreign government for its actions. A president-elect and his transition team are in an even better position to influence a foreign government because they will soon take the reins themselves. In that case, it can be said that a “natural and probable” result of communications between a transition team and a foreign government may be to influence the foreign government’s actions.

  1. “Disputes,” “controversies,” and “measures of the United States.”

To obtain a Logan Act conviction, a prosecutor would need to show that the defendant sought to influence a foreign government with respect to a discrete “dispute” or “controversy” with the United States or would need to identify a “measure of the United States” that the defendant sought to “defeat.” With respect to “disputes” and “controversies,” the Justice Department under President Kennedy took the view that those terms should be construed as “customarily understood in diplomatic parlance,” which would likely entail not just the existence of tensions but of positively conflicting claims. The term “measure” is more opaque, but would seem to require—based on then-contemporary —a “plan or course of action intended to attain some object” that the defendant tried to thwart.

Thus, then-candidate Barack Obama probably did not violate the Logan Act by traveling to Berlin in July 2008 and meeting with Chancellor Angela Merkel. While Obama and Merkel spoke about foreign relations, there is no evidence that they discussed a particular U.S.-Germany dispute or that Obama sought to countermand any Bush administration policy. Obama also would not have violated the Logan Act if—in his meeting with French President Emmanuel Macron —he advised Macron about relations between France and other European Union countries in which the United States was uninvolved. The Logan Act comes into play only if there is a conflict between a foreign government and the United States or if there is a particular U.S. policy that the defendant has sought to undermine. Similarly, Obama would not have violated the Logan Act if, , he lamented the lack of U.S. leadership on global warming. The Logan Act does not criminalize criticism of the United States.

There are, to be sure, circumstances in which an ex-president’s contacts with foreign officials might violate the Logan Act. Former President Jimmy Carter pushed the Logan Act envelope when he to Damascus in 2008 and met with Syrian leader Bashar al-Assad as well as the head of Hamas. His trip undermined the U.S. government’s effort to isolate Syria and Hamas—and thus arguably was an attempt to “defeat” a U.S. “measure.” Carter’s best defense might be—similar to Sens. McGovern and Sparkman—that the Bush administration acquiesced to these contacts by allowing him to travel abroad despite knowledge of whom he would meet.  If, in his recent trip, Obama had (hypothetically) tried to persuade European leaders to retaliate against the United States for withdrawing from the Paris agreement, and (especially) if he made a plausible promise that the Democrats would reward European governments when they were back in power, this would seem like a clear Logan Act violation.

  1. “Redress of any injury.”

The second paragraph of the Logan Act states that the statute “shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government ... for redress of any injury which he may have sustained from such government or any of its ... subjects.” The State Department has interpreted this exception broadly. Returning to the McGovern-Sparkman episode mentioned above, the State Department said there that the lawmakers’ contacts with Cuba “appear to fall within the second paragraph of Section 953.” The senators pressed Fidel Castro to return a $2 million ransom payment that Southern Airways had made to a hijacker who commandeered one of its planes in 1972 and Castro to allow the parents of Red Sox pitcher Luis Tiant to reunite with their son and visit Fenway Park.

From an agency law perspective, it is difficult to describe the senators as “agents” of either Southern Airways or Luis Tiant. The senators certainly would not have had authority to enter into a contract on either’s behalf. But the State Department’s conclusion has a strong basis in the Logan Act’s legislative history. Supporters of the legislation understood the statute to immunize citizens who lobby foreign governments not only with respect to their own “private affairs,” but also for “release of [their] friends.” Rep. Griswold insisted that “the bill does not extend to the mere application of an individual for the release of seamen.” Griswold derived this conclusion from the phrase “disputes or controversies” in the statute’s first paragraph rather than “redress of any injury” in the second paragraph, but regardless of the textual hook, the framers’ understanding appears to be consistent with the State Department’s later view that the statute does not apply to U.S. citizens who contact foreign governments in order to secure the release of prisoners.

On this view, Ross Perot, whose conduct with respect to South Vietnam clearly comes within the ambit of the Logan Act’s first paragraph, might thus have had a defense based on the claim that he was seeking redress on behalf of American prisoners of war and their families. The same may be said about Jesse Jackson’s 1984 trip to Cuba (and may explain why President Reagan ultimately acknowledged that he did not Jackson had violated the Logan Act).

  1. Statute of limitations.

The Logan Act is subject to the general five-year for federal crimes. This reduces the risk that a new administration will use the statute to pursue political prosecutions for long-ago offenses. Pelosi and Carter need not worry that they will be prosecuted for their trips to Syria in 2007 and 2008; Jackson and Perot can rest assured that their prisoner release efforts in the 1980s and 1990s will not lead to indictment; and Henry Kissinger has no reason for concern about Logan Act liability related to his involvement in Nixon’s 1968 overture to South Vietnam. Some of these individuals might be able to defend against charges on other grounds, but the statute of limitations would impose a clear additional bar.

 

Further Limits and Considerations

Why has the Logan Act been so rarely enforced? We suspect that the answer is that prosecutors have wisely been reluctant to bring a case where there has not been a clear harm, and cases involving clear harm have been rare indeed. A quixotic effort to influence a foreign state by an ordinary citizen with little hope of success is unlikely to trigger enforcement (and, as noted above, might not satisfy the “intent” requirement based on Assistant Attorney General Warren’s reading). Celebrities, ambitious politicians, and other public figures more often than not are pulling political stunts that may be slightly embarrassing to the U.S. government but not a source of real harm. Overreaction would galvanize opponents of the foreign policy in question. Thus, if the law is ever used, we suspect it will be used against the narrow class of people who are capable of causing serious damage to U.S. foreign policy.

To be sure, prosecutorial discretion can either exacerbate or mitigate concerns regarding a statute’s scope. One might worry that a statute will be used as a cudgel against political enemies while political allies are given free rein. One also might worry that prosecutors in the future will not be as restrained as their predecessors. Nonetheless, the rarity of Logan Act prosecutions over the past 218 years does something to allay concerns about overcriminalization. We have had time to test whether the statute’s existence would lead to politicized prosecutions and the chilling of free speech. So far, it has not.

Finally, if prosecutors fail to exercise discretion in the future, the First Amendment still could act as a backstop. An as-applied challenge might be viable in the context of a particular prosecution that imperils free speech. By contrast, a facial First Amendment challenge on overbreadth grounds would be harder to maintain in light of the limiting principles identified above.

Applying the Logan Act to Trump transition team members who communicated in secret with Russian officials does not set off First Amendment fire alarms. Nothing in the Logan Act prevented President-elect Trump and his transition advisers from expressing their views about U.S. foreign policy or the impending U.N. Security Council vote through op-eds or speeches. They would not have run afoul of the statute in December 2016 if they said to reporters: “We disagree with the Obama administration’s stance on the U.N. Security Council resolution condemning Israel, and we hope that Russia exercises its veto.” The Logan Act is not a muzzle.

For Special Counsel Robert Mueller, the question now is whether the Logan Act ought to be wielded as part of his widening investigation. That question has both statutory and strategic components. Statutorily, we think that Trump transition team members do fall within the Logan Act’s ambit when the law is construed as above. According to court , Flynn—acting at the direction of a “very senior member” of the Trump transition team—reached out to the Russian ambassador to the United States and urged Russia to veto a U.N. Security Council resolution condemning Israeli settlement activity. There is no indication that the Obama administration implicitly acquiesced to this contact, nor is there any doubt that the Russian ambassador qualifies as an officer or agent of a foreign government. While others have whether this was an effort to defeat a U.S. “measure” (the United States did not introduce the resolution, and it abstained in the ultimate vote), Flynn’s action clearly was an effort to influence Russian conduct in relation to a between the United States and Israel regarding the West Bank settlements. (Note that the Logan Act would apply to an effort to influence Russian conduct in relation to “any disputes or controversies” with the United States; the fact that the relevant “dispute” was with Israel rather than with Russia would not seem to be dispositive.)

Yet even if we are correct on the statutory point, there remains the question of whether it would be strategically wise for Mueller to bring Logan Act charges. Frank Bowman argues cogently in that invocation of the Logan Act would trigger “inevitable allegations of political bias,” given the long history of not enforcing the law. This is no doubt true, though allegations of bias are probably inevitable however Mueller proceeds. Indeed, one of the reasons for appointing a special counsel in the first place is so that the special counsel can make prosecutorial decisions based on the best view of the law rather than on political calculations.

In the end, Mueller may decide to eschew Logan Act charges for sensible reasons. The federal , which Flynn pleaded guilty to violating, may provide a surer path to conviction, and it carries a higher maximum sentence (five years rather than the Logan Act’s three). Yet the Logan Act still would be available to Mueller in the case of a defendant who did not make a false statement with respect to a federal inquiry.

And whatever the result in this case, the debate over the Logan Act likely will continue beyond the Trump years. The Logan Act—and the nation—will almost certainly survive the current presidency. The present controversy can serve to clarify the Logan Act’s objects and limits even if it does not result in the statute’s invocation.

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