Don’t Know Much about Foreign Policy: The Senate 47

Amateurish? Condescending? Yes. Treasonous? No.

Mitch McConnellOk, so 47 Senate Republicans have posted an open letter to the Leaders of the Islamic Republic of Iran wherein they are condescendingly concerned that said leaders “may not fully understand our constitutional system” and they proceed to lay down some simplistic civics and, in so doing, attempt to undercut the Obama administration’s negotiations with Iran.

First, I can’t imagine that the Iranian government will take this seriously. (Indeed, the Iranian government has rightly called the letter “propaganda.”)

Second, I suspect that the intended target of the letter is not so much the Iranian government as much as it is a combo of President Obama (Hey!  Look at us!  Don’t ignore us!) and the Republican base (Look how tough we are! Vote for us!).

Third, no, I do not think this is a violation of the Logan Act.

Fourth, to that last point, members of Congress have the right to have opinions about foreign policy.  Ultimately I am not sure how this is much different than holding a series of press conferences stating that if they get the chance they will pass legislation undermining an agreement with Iran (or a GOP presidential candidate campaigning on the notion that, if elected, any deal with Iran would be dismantled).

Fifth, Drezner:

But here’s the thing — path dependence is a powerful force in foreign policy. If — still a big if — Obama successfully negotiates a deal in the spring, that deal will have until January 2017 to marinate before the next president has the opportunity to scuttle the executive agreement. If Iran acts in a dodgy fashion, that’s one thing. If, however, they honor the terms as well as they’ve honored the interim deal, then the next president will be trying to sabotage an agreement that tamped down a major stressor in the region.

That’s going to be politically difficult.

Sixth, also Drezner:

if Obama’s foreign policy team is smart, it will use the specter of a hawkish successor as a way to bolster its negotiating position for the next year. From now to early 2017, the Obama administration is negotiating at the global stage over Iran, TPP, TTIP, climate change, Ukraine and perhaps North Korea. Obama’s negotiators should intimate that whomever the president will be in 2017, they’re going to be far less likely to compromise on any of these issues.

Seventh, the whole thing strikes me as amateurish as it really will not have much affect and makes the Senators in question appear to playing crass politics with foreign policy.  Will this help with certain parts of the GOP base?  Sure, but to what end?  Further, it is just squandering the political capital of high office to appeal to voters who already are on their side.  It is indicative of the kind of politics that certain portions of the GOP seems to favor of late:  bluster and alleged forthrightness that really instead of being principle ends of being a lot of noise and not much else.  To borrow a phrase one of their chief spokesmen used to (and may still) like to spout:  it is symbolism over substance.  It certainly isn’t a serious attempt at governing.  (But so what else is new?).

FILED UNDER: National Security, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Surreal American says:

    I’m sure Nixon would have been totally cool with a stunt like this had it been pulled during his negotiations with China.

  2. HarvardLaw92 says:

    I’ll disagree that it’s a pretty blatant violation of 18 U.S.C. § 953, but prosecution will never happen, so it’s a moot point.

  3. HarvardLaw92 says:

    @Surreal American:

    Ironic reference, since Nixon pulled it in 1968 when he was running for the presidency regarding negotiations with Vietnam under Johnson.

    He should have been prosecuted too.

  4. @HarvardLaw92: I am not sure how Congress, basically pontificating in public, qualifies.

  5. C. Clavin says:

    Imagine, for a moment, Democrats pulling a stunt like this in the run up to the massive Foreign Policy blunder that was Iraq.

    As for the Logan Act and treason…like Bush and Cheney and torture…prosecution is never going to happen so it doesn’t really matter. You say tomato I say tomato.

    In either case….it is clear that Cotton and the other Senators idiots who signed this letter are aching for another war to send other peoples kids off to die in and to waste taxpayer money on. I cannot emphasize enough how important it is that this effort be labelled for exactly what it is…and that it be stopped in it’s tracks.

  6. michael reynolds says:

    The GOP is trying to start a war. That’s what this is. They are pushing for a war that would be fought by Americans for Likud. It is no doubt legal. It is also, no doubt, disloyal to the point that it becomes a sort of moral treason.

  7. MarkedMan says:

    This just confirms a few things:
    – the modern day Republicans’ natural posture is that of an opposition party. They are completely unable to accept the responsibility to govern that comes with the majority.
    – There has always been a strain in the so called conservative movement that is bored of complexity and longs to follow a tough talking “real man” leader. You see it in their obvious infatuation with Putin, and now Netanyahu. And of course O’Reilly and Limbaugh in the popular media.
    – the difference between this letter and Jane Fonda’s trip to Hanoi? This is the Republican (so-called) leadership while Fonda, although in the ‘Leans D’ camp, was vilified by the actual leadership of the Democratic Party. It is the same in that both the 47 and Fonda are buffoons that embarrass our country with their incredible naïveté.

  8. HarvardLaw92 says:

    @Steven L. Taylor:

    Ok, let’s parse the act:

    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.

    “Any citizen of the United States, wherever he may be” – Senators have to be US citizens, so all 47 of these people fall under the affected class of the act

    “without authority of the United States” – authority to engage in foreign relations lies with the executive, and may only be delegated by the executive. SCOTUS has made that very clear in U. S. v. Curtiss-Wright Export Co.

    Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.

    “directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof” – Call me crazy, but a letter drafted on U.S. Senate letterhead and addressed to “the Leaders of the Islamic Republic of Iran” meets that condition

    ” in relation to any disputes or controversies with the United States, or to defeat the measures of the United States” – The letter is directly related to a controversy with the United States, and was pretty clearly intended to undermine administration policy in that regard. It’s an -or- mandate. Violating either part qualifies as a violation of the Act, and as far as I can see, they violated both parts.

    I’m not sure how anyone could the action of these senators as not violating the terms of the Act.

  9. rachel says:

    @michael reynolds: I honestly don’t think they’re thinking that far ahead.

  10. Slugger says:

    Seriously, what is the alternative plan here? Bomb Iran tomorrow to total rubble and repeat every two years? Convince Russia, China, and Germany to never allow the US a serious role in negotiations? Since Obama is the captain of the ship of state, then sink the ship? Show that America’s policies are made by Bibi?

  11. Paul L. says:

    @C. Clavin:

    Imagine, for a moment, Democrats pulling a stunt like this in the run up to the massive Foreign Policy blunder that was Iraq.

    Ted Kennedy Secretly Asked The Soviets To Intervene In The 1984 Elections

    @HarvardLaw92:

    As for the Logan Act and treason… it’s a pretty blatant violation of 18 U.S.C. § 953

    ‏@hunterpearce @RBPundit Oops: MMFA pointed out that the Logan Act doesn’t apply to members of Congress when Pelosi met with Assad.
    http://mythopedia.mediamatters.org/myths/nancy-pelosi-violated-the-logan-act

  12. Paul L. says:

    @C. Clavin:
    @HarvardLaw92:
    MMFA disagrees . “Logan Act doesn’t apply to members of Congress”
    http://mythopedia.mediamatters.org/myths/nancy-pelosi-violated-the-logan-act

    But that is just a rightwing talking point.

  13. Hal_10000 says:

    We don’t need to imagine what would happen if a Democrat did this. The GOP went ape on Nancy Pelosi when she met with Assad (and rightfully so, in my opinion). Foreign policy is the one area where the President has the most authority. Obama’s negotiations with Iran are no so far out of line as to warrant undermining him like this.

    I’ve given up trying to reason with Republicans on this. Iran is our enemy now but, the future, they are much more natural ally to us than, say, Saudi Arabia.

    That having been said, the reality is that Iran will never abandon their nuclear ambitions. They will not accept a situation where Russia, China, Pakistan, India, Israel and the US have nuclear weapons and they don’t. The defining element of Iranian foreign policy right now is an overwhelming fear that we (or Israel) will attack them. That doesn’t mean an Iranian nuke is acceptable — too great a danger of it falling into the hands of crazy people. But it means our main effort is to delay that as long as possible, which we’ve now done for twenty years and could probably do for another twenty if we’re smart.

  14. humanoid.panda says:

    @Slugger:

    Bomb Iran tomorrow to total rubble and repeat every two years?

    This is I thnk the endgame: delay a deal for 2 years, win the presidency, go to war (I suspect that when president Rubio or whatever is elected, he will discover that going to war is a bad idea and will be denounced as traitor, but that’s a different kettle of fish).

  15. HarvardLaw92 says:

    @Paul L.:

    They’ll have to get back to me when the Department of State has the power to determine where, when and how laws have been violated.

    There is no role for Congress in negotiating with foreign governments, or any situation where Congress interfering with the same (even indirectly) doesn’t violate separation of powers.

    These clowns acted illegally and unconstitutionally. Tom Cotton graduated from the same law school that I graduated from, and he well knows that. He just doesn’t care, nor do his fellow signatories. In their world, the ends justify the means, and the law is just a suggestion …

  16. C. Clavin says:

    @Hal_10000:
    I fail to see how Pelosi meeting with Assad is the same as Cotton intentionally undermining active negotiations. At the time the Bush administration was trying to isolate Syria…but still…that’s hardly the same, now, is it?
    I do see that you are parroting a bunch of right wing nut job sites…so it’s always good to know where these crazy ideas are being sourced.

  17. JWH says:

    I am curious, though … has President Obama included any Republican senators on his negotiating team, or has he consulted with them privately regarding the Iran deal?

  18. DrDaveT says:

    Further, it is just squandering the political capital of high office to appeal to voters who already are on their side.

    Just one word, Vern: “Primary Election”.

  19. stonetools says:

    Remember when the pundits agreed that once the Republicans achieved majorities in both Houses of Congress, they would have to give up partisan obstructionism and govern for the good of the country?

    This letter makes it clear that the pundits are dead wrong and the Republicans still don’t give a d@mn about governing. Moreover, it’s not about pandering to their base. Congressional Republicans actually believe the crazy things coming out of their mouths and from their pen. Cotton actually believes that ISIS and Iran were part of all one united Islamic conspiracy “against America and Israel “, so “appeasing ” them just puts off the all out war he is certain is coming.
    Expect lots more Republican crazy, till the country comes to its senses and threws the Republicans out. Let’s hope it’s BEFORE the next Mideast war they get us into.

  20. @HarvardLaw92: Let’s start with this:

    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

    Given that the law in question was passed in 1799, the meaning of the above phrase is a tad different than what boils down to public posturing on behalf of these 47 Senators. In 1799 there was no such thing as press conferences and PDFs posted to web sites.

    I think Steve Vladek is on to something in the following, which relates to my point:

    The Logan Act, recall, was written in 1799, well over a century before the rise of modern First (and Fifth) Amendment doctrine with regard to protections for speech and against prosecutions for unclear misconduct. 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. Thus, even if the Act does encompass official communications from Members of Congress acting within their legislative capacity, it seems likely that it would not survive modern First Amendment scrutiny were it to be invoked in such a case.

    Vladek’s whole post is worth a read (and I also shared it as a Quick Pick already).

    Like Vladek I also question whether the phrase ” without authority of the United States” doesn’t already give members of the US Senate cover on this issue. Like or not, Senators have a role to play in foreign policy and they are officials of the United States regardless of anything else.

    I can’t disagree with occassional OTB constributor Chris Lawrence, who noted the following on FB (and was the source of the Vladek link):

    The Logan Act: unenforceable Federalist Party horseshit, from the same clowns that brought you the similarly unconstitutional Alien and Sedition Acts.

    I think the letter is silly (among other things) but I do not think it treasonous or illegal.

  21. @DrDaveT:

    Just one word, Vern: “Primary Election”.

    There is that, but in this case the real pander would be for presidential primaries, and I am not sure how this helps that. I am not sure how this really helps in terms of the primaries these Senators may face (many of whom are pretty safe regardless).

  22. Dave Schuler says:

    IMO in initiating direct contact with a foreign government the senators are violating the separation of powers or, at the very least, skating dangerously close to it. Do they have a right to do it? Probably, regardless of the Logan Act. Should they have done it? I don’t think so.

    Of course, I think that “fact finding missions” i.e. official overseas travel (other than to U. S. military bases), by senators and representatives are beyond their powers, too, but that’s being pretty purist.

    Keep in mind that senators have the last say in all treaties. They don’t become law without the approval of two-thirds of the senators voting and that’s not exposed to a presidential veto.

  23. HarvardLaw92 says:

    @Steven L. Taylor:

    Which tells me why you think it shouldn’t be illegal. The text of the statute, which is what determines illegality, is in no way unclear.

    If you guys dislike it, then change it. Until then, the law is the law, and this one isn’t vague.

    Even conceding your point *(which I am not …)*, it violates separation of powers. There is no universe in which what these clowns did is permissible.

  24. An Interested Party says:

    It would be nice if Republicans would do something about domestic policy in this country rather than trying to take care of Israel’s foreign policy…

  25. @HarvardLaw92: Who are “you guys”?

    Regardless, I disagree that it is all that clear given how is involved and how the “correspondence” took place.

    If they said the exact same thing as in the letter but did it in a press conference would that qualify?

    And, again, like it or not, Senators are part of the “authority of the United States.”

  26. Mikey says:

    @HarvardLaw92: What about this (from the Vladeck piece to which Steven linked):

    …the Logan Act has never been successfully used (indeed, the last indictment under the Act was in–not a typo–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.

  27. HarvardLaw92 says:

    @Steven L. Taylor:

    If they said the exact same thing as in the letter but did it in a press conference would that qualify?

    Under the terms of the statute as written? Yes. I’m not sure what part of “directly or indirectly” was unclear.

    The First Amendment is a bar on prior restraint. It is not a get out of jail free card with respect to the negative consequences of speaking.

    And, again, like it or not, Senators are part of the “authority of the United States.”

    Not with respect to foreign policy. The Constitution reserves foreign policy to the executive. Members of Congress can no more assume that role for themselves without the permission of the executive than the president can enact laws.

    What they are doing is acting OUTSIDE their authority, and violating separation of powers in doing so (as well as the non-vague mandates of 18 U.S.C. § 953).

    If the statute itself is determined by a court to be unconstitutional, then so be it and the senators are in the clear, but – and this is important – that is an argument for not convicting them.

    Not one for not indicting them. They broke the law.

  28. Scott says:

    They will not accept a situation where Russia, China, Pakistan, India, Israel and the US have nuclear weapons and they don’t.

    Just want to point out that Pakistan just tested a nuclear-capable missile with a range of 1700 miles. Everyone views it as threatening India but it is also capable of reaching Teheran.

  29. HarvardLaw92 says:

    @Mikey:

    Desuetude doesn’t apply to violations of the constitution, so it doesn’t protect them from violating separation of powers.

    It is an affirmative defense, in which the burden of sufficiency lies with the defendant asserting it, not the state. It also requires not only a history of non-enforcement, BUT ALSO a history of open and pervasive violation. In other words, it’s not enough that the statute has never been enforced; people also have to have violated it openly, pervasively and regularly. If they wanted to assert it as a defense, more power to them and best of luck.

    But again, that’s an argument for not convicting them, not one for not indicting them.

  30. @HarvardLaw92: Look, I think the whole was, to use a direct and inelegant term, stupid. However, I think you are letting the fact that you don’t like these people cloud your judgment.

    Also:

    e Constitution reserves foreign policy to the executive.

    This is simply not the case.

    In truth, the Constitution is pretty vague on the subject, and even those areas where is it s clear (CinC, naming ambassadors) it gives Congress a role. I suppose that the power to receive foreign ambassadors is an exclusive power.

    However, given that any foreign policy ultimately requires things that Congress funds, it is rather impossible to claim that the president has sole domain over foreign policy.

    It is true that the president has far more latitude in foreign policy than he does in domestic, but that is the nature of the policy realm in question, not the result of constitutional mandate.

  31. @HarvardLaw92:

    Desuetude doesn’t apply to violations of the constitution

    Could you point to the portion of the US Constitution being violated here?

    (And, beyond that, explain how the Logan Act doesn’t violate the First Amendment?)

  32. James Pearce says:

    Will this help with certain parts of the GOP base? Sure, but to what end?

    Ah, Dr. Taylor….you’re asking the question the GOP base never seems to ask.

    “To what end?”

    If they did, they would find out the answer is incredibly small or incredibly misguided.

  33. Mikey says:

    @HarvardLaw92:

    Desuetude doesn’t apply to violations of the constitution, so it doesn’t protect them from violating separation of powers.

    You’re asserting a violation of the Logan Act, not of the Constitution. The Logan Act is a statute like any other, so why shouldn’t the principle of desuetude apply?

    Whether there’s been “open and pervasive violation” is another question, of course. I’d say given the last indictment under it was 212 years ago, we’ve got precious little to go on.

    If this bunch were indicted, we’d probably get an answer to all these questions!

  34. The question about constitutional power and foreign policy reminded me of the following from a James Joyner post of just over 4 years ago:

    The political scientist Edward Corwin famously said of American foreign policy that the Framers had provided “an invitation to struggle” among the three branches of government. Even if we just take the war-making power, we see that the president is the commander-in-chief of the armed forces and appoints senior officials; the Congress declares war, raises the army and navy, and provides funding; the Senate confirms relevant cabinet officials, general and flag officers, and ratifies treaties; and the Supreme Court has original jurisdiction on several relevant matters. It is by no means clear where these powers leave off and the others begin. Over time, presidents have assumed primacy in this struggle, essentially abrogating to themselves the power to send the nation to war. Some argue that this is “unconstitutional” and “contrary to the wishes of the Framers.” But recall that George Washington, Thomas Jefferson, and James Madison all pushed the envelope on presidential power in this realm during their presidencies.

  35. HarvardLaw92 says:

    @Steven L. Taylor:

    However, I think you are letting the fact that you don’t like these people cloud your judgment.

    No, I was a prosecutor, and I still think like one when it comes to the sanctity of the law. The law is the law. It has to be defended. This one is not vague, its mandates were violated, and that’s all I need to know to pursue an indictment.

    However, I think you are letting the fact that you don’t like these people cloud your judgment.

    It has nothing to do with disliking them. They broke the law. It’s that simple for me. I’d be saying the EXACT same thing if 47 Democrats had done this. They’d deserve to be indicted too.

    In truth, the Constitution is pretty vague on the subject

    In truth, the text of the Constitution means what SCOTUS says it means. When they ruled that


    the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.

    , were they just kidding?

    When it comes to negotiating with foreign powers, the president alone has that power.

    Could you point to the portion of the US Constitution being violated here?

    See above. Congress may not usurp a role reserved to another branch of government.

    Unless you are arguing that separation of powers is just a cute idea anyway.

    explain how the Logan Act doesn’t violate the First Amendment?

    The First Amendment imposes a bar on prior restraint. It doesn’t protect you from the consequences of engaging in illegal or damaging speech.

    Since we’re on the subject, explain to me how statutes which bar inciting a riot, just as an example, don’t violate the First Amendment?

  36. HarvardLaw92 says:

    @Mikey:

    You’re asserting a violation of the Logan Act, not of the Constitution.

    I’m asserting a violation of both …

    why shouldn’t the principle of desuetude apply?

    Whether there’s been “open and pervasive violation” is another question, of course. I’d say given the last indictment under it was 212 years ago, we’ve got precious little to go on.

    It CAN apply, if the defendants successfully convince a court that their assertion of it as an affirmative defense is sufficient to meet the conditions. Again, though, that is their burden and their problem, not mine. I’m not their lawyer; I’m the lawyer that wants to indict them.

    If this bunch were indicted, we’d probably get an answer to all these questions!

    Good, then we’re in agreement. Indicting them benefits everybody 😀

  37. Mikey says:

    @HarvardLaw92:

    See above. Congress may not usurp a role reserved to another branch of government.

    This is the part of your argument I see as inapplicable. The Logan Act applies to “any citizen of the United States,” not just members of Congress. It doesn’t address usurpation of a role reserved to another branch of government.

  38. HarvardLaw92 says:

    @Mikey:

    They are two separate arguments, unlinked to each other in any way. That comment was not related to the argument about the Logan Act. It concerned the finding by SCOTUS that the Senate has no role in / power to interfere with negotiations with foreign powers.

    Their role is to say yay or nay once the negotiations have been concluded, and even then only with respect to proposed treaties. Executive agreements with other powers under the terms of existing treaties (which in actuality this seems to be) do not require their consent. That’s it.

  39. Rafer Janders says:

    @HarvardLaw92:

    It is not a get out of jail free card with respect to the negative consequences of speaking.

    Well, that’s not actually true. It is actually quite often a get out of jail free card with respect to the negative consequences of speaking when those negative consequences involve potential criminal prosecution by the federal government (absent certain well-defined carve-outs). The federal government could not, for example, try and jail me for writing “I love Iran” right here without committing a First Amendment violation.

  40. Rafer Janders says:

    @HarvardLaw92:

    The First Amendment imposes a bar on prior restraint.

    True, but that’s not the only thing it does.

    It doesn’t protect you from the consequences of engaging in illegal or damaging speech.

    Ah, i see you’ve modified your earlier statement here to include “illegal or damaging.” Which raises the question, is this speech “illegal” in the first place?

    (I’ll also note, again, that the First Amendment does indeed protect you from the consequences of engaging in even “damaging” speech when that consequence is criminal prosecution, absent certain well-defined exceptions. I may not be able to scream “fire” in a crowded theatre with the intent of causing a stampede — but I can say most any other thing potentially “damaging” to the position and prestige of the United States government without fear of criminal prosecution. Criminal restrictions on “damaging” speech are generally only limited to speech that would pose an immediate and irrevocable danger of physical harm).

  41. Rafer Janders says:

    @HarvardLaw92:

    No, I was a prosecutor, and I still think like one when it comes to the sanctity of the law. The law is the law. It has to be defended. This one is not vague, its mandates were violated, and that’s all I need to know to pursue an indictment.

    Does it give you pause to think that not one single federal prosecutor in 212 years has agreed with your interpretation of what the law is?

  42. Mikey says:

    @HarvardLaw92: I guess I was confused because you brought the separation of powers stuff in when you addressed my initial question re: desuetude.

  43. @HarvardLaw92:

    No, I was a prosecutor, and I still think like one when it comes to the sanctity of the law. The law is the law. It has to be defended. This one is not vague, its mandates were violated, and that’s all I need to know to pursue an indictment.

    This at least gives me an idea of where you are coming from–thanks.

  44. HarvardLaw92 says:

    @Rafer Janders:

    Honestly, that’s a stretch. @Rafer Janders:

    absent certain well-defined carve-outs

    Say, just as example, the prevention of harm to the government as it relates to the undermining of ongoing negotiations with foreign powers?

    The carve-outs pretty universally relate to the prevention of harm as a permissible basis for abrogation. I see no problem with 953 in that regard.

    generally only limited to speech that would pose an immediate and irrevocable danger of physical harm

    Say, for example, communicating with a foreign government to undermine negotiations between it and the US?

    Does it give you pause to think that not one single federal prosecutor in 212 years has agreed with your interpretation of what the law is?

    Not accurate. The US Attorney for Kentucky procured the indictment of Francis Flournoy for violating the Logan Act in 1803.

    That said, no, it doesn’t bother me at all. I view each and every decision to forgo indictment for established violations of the act to have been a gross mistake.

  45. HarvardLaw92 says:

    @Mikey:

    I combined answers to multiple questions in an attempt to limit the number of comments, which was probably my mistake. These “pile on the guy making the unpopular argument” situations usually don’t take long to turn into disjointed messes.

  46. Mikey says:

    Google Scholar is a nifty thing, you can search federal court decisions. So I searched for “Logan Act” and found this (50 years old, but seems relevant):

    Another infirmity in defendants’ claim that plaintiff violated the Logan Act is the existence of a doubtful question with regard to the constitutionality of that statute under the Sixth Amendment. That doubt is engendered by the statute’s use of the vague and indefinite terms, “defeat” and “measures.” See United States v. Shackney, 333 F.2d 475, (2d Cir. 1964); Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960); E. Freund, The Use of Indefinite Terms in Statutes, 30 Yale L.J. 437 (1921). Neither of these words is an abstraction of common certainty or possesses a definite statutory or judicial definition.

    231 F.Supp. 72 (1964)
    Gerald B. WALDRON, individually and doing business as Consolidated Brokerage, Plaintiff,
    v.
    BRITISH PETROLEUM CO., Ltd., Cities Service Co., Socony Mobil Oil Co., Inc., Standard Oil Co. of California, Standard Oil Co. (New Jersey), Texaco Inc., Defendants.

    United States District Court S. D. New York.
    June 23, 1964.

  47. Rafer Janders says:

    @HarvardLaw92:

    Say, for example, communicating with a foreign government to undermine negotiations between it and the US?

    Say not at all, because in no reasonable way can that be interpreted as an immediate and irrevocable danger of physical harm. Even the text of their own letter says it’s something they may do at some unspecified point in the future.

  48. HarvardLaw92 says:

    @Mikey:

    The act establishes two independent conditions which constitute violation, hence the “or”. Violating either of them, without respect to or concern for the other, is sufficient to justify pursuing an indictment.

    Waldron v. BP concerns itself with the second condition. It does not address or concern itself with the first.

  49. HarvardLaw92 says:

    @Rafer Janders:

    We’ll have to disagree about that. The letter could just as easily have motivated Iran to walk away from the negotiating table (after all – what motivation do you have to negotiate when you’ve just been told that the agreement won’t be ratified by the Senate?)

    It didn’t, but it could have, and that potential for immediate harm to the interests of the United States is all I need to justify pursuing an indictment.

  50. James P says:

    Were the Democrats who were sucking up to Daniel Ortega in the 1980s similarly malfeasant?

    The GOP is trying to scuttle BHO’s attempt to aid and abet Iran in going nuclear. If that means enabling the hardliners in Iran in order to scuttle the deal, so be it. We worked with Stalin to stop Hitler. If we have to work with IRanian hardliners in order to scuttle Obama and the Iranian “moderates” so be it.

    This deal must be stopped and the GOP is doing its best to do so. If IRan knows that this deal is only good for two years they might hesitate to sign it. IF there is an agreement (any agreement) it will tie the hands of the president in 2017 and forward. However, if there is no agreement the next president will be able to stop Iran from going nuclear. It is imperative to prevent Obama from reaching ANY deal with the Iranians.

  51. James P says:

    @HarvardLaw92: [“Executive agreements with other powers under the terms of existing treaties (which in actuality this seems to be) do not require their consent. That’s it. “]

    Exactly, that’s what the letter says.

    If the Senate ratifies the agreement as a treaty, then the hands of the next president are tied.

    However, if the Senate does not give its imprimatur then it is only an executive agreement – which the next president is free to ignore and disregard.

    THe Iranians need to know that if the Senate does not ratify the agreement, they are making an agreement with Barack Hussein Obama (a lame duck who will be gone in two years) not the United States of America.

    They are only making an agreement with the United States of America if the Senate OKs the agreement. They need to be reminded that Obama is gone in two years and their agreement is with him. Once he’s gone the agreement can be torn up.

  52. Mikey says:

    @HarvardLaw92: Interestingly, that same decision held desuetude wouldn’t apply to the Logan Act:

    The Court finds no merit in plaintiff’s argument that the Logan Act has been abrogated by desuetude. From the absence of reported cases, one may deduce that the statute has not been called into play because no factual situation requiring its invocation has been presented to the courts. Cf. Shakespeare, Measure For Measure, Act II, Scene ii (“The law hath not been dead, though it hath slept.”).

    IMHO the signatories of the letter likely took the position they would never be prosecuted anyway, so why not go ahead and throw the monkey wrench?

  53. HarvardLaw92 says:

    @Mikey:

    IMHO the signatories of the letter likely took the position they would never be prosecuted anyway, so why not go ahead and throw the monkey wrench?

    Bingo. Like I said above, I suspect Cotton knows what happened here is arguably illegal and almost certainly unconstitutional. He and his pals just don’t care.

    Hence my argument for vigorous prosecution. People pull stunts like this one because there are no consequences for doing so. You hang a few people up by their toenails (figuratively speaking …) and the rest of them will get the message.

  54. Neil Hudelson says:

    THe Iranians need to know that if the Senate does not ratify the agreement, they are making an agreement with Barack Hussein Obama (a lame duck who will be gone in two years) not the United States of America.

    Can we just refer back to this comment anytime someone’s tempted to think “James P” understands anything about U.S. Government or International Law?

  55. michael reynolds says:

    Here’s how this plays out, contra the GOP/Likud apologists.

    1) The GOP/Likud gives Iranian hardliners enough ammo to sink negotiations.
    2) The sanctions regime starts to fall apart, strengthening Iran.
    3) Iran, convinced no deal is possible, begins weaponizing.
    4) The US attacks.

    That’s the GOP/Likud plan. (Well, that and some infantile nya nyah nyah, so there, Obama!)

    What the GOP/Likud ignore is the next steps.

    1) Iran ends cooperation on Afghanistan and aids in attacks on US troops there.
    2) Iran activates Hezbollah to carry out terrorist attacks in the US and Europe.
    3) The war is seen as an Israeli plot, heightening anti-semitism in the US and Europe.
    4) Saudi Arabia with help from Pakistan develops an Arab bomb.
    5) In 3-5 years, Iran tests a bomb.
    6) And now we have a nuclear-armed terrorist state, plus a nuclear-armed KSA.

    This is what the GOP/Likud is maliciously bringing about.

  56. HarvardLaw92 says:

    @Neil Hudelson:

    The best thing to do in response to his commentary is to ignore it entirely.

  57. HarvardLaw92 says:

    @michael reynolds:

    I’ve started calling them Lukid-licans. It’s catch-all, and it has a nice flow to it.

  58. @HarvardLaw92: This much is certain.

  59. JohnMcC says:

    @HarvardLaw92: Definitely a troll who richly deserves to be ignored. Yech!

  60. Just 'nutha' ig'rant cracker says:

    @HarvardLaw92:

    No, I was a prosecutor… that’s all I need to know to pursue an indictment.

    IANAL (and don’t protray one on TV), but I don’t need to be one to know that your assertion above is wishful thinking at best and bufflao chippery at worst. Among your other consideratiobns as a prosecutor are
    1. the likelyhood that you can actually gain a conviction
    2. questions related to how likely your conviction is to be overturbed on review
    3. public reaction to news of the prosecution
    4. political fallout to yourself, your boss, and others resulting from the prosecution.

    Nice try, but no sale. This is your ego getting stepped on in an exchange much like the one from yesterday in the Selma therad. How does the other side feel?

  61. James P says:

    [“No, I was a prosecutor… that’s all I need to know to pursue an indictment. “]

    I think Mike NiFong once said something similar to that.

  62. michael reynolds says:

    @HarvardLaw92:
    I may steal that. Which brings me to my next question: how serious are you about attribution?

  63. HarvardLaw92 says:

    @michael reynolds:

    Sure. It was supposed to be Likud-licans. Consider it pubic domain.

  64. HarvardLaw92 says:

    @Just ‘nutha’ ig’rant cracker:

    Those were my boss’s concerns, not mine. All I cared about was whether or not I had a case and whether or not I could sell it to a judge/jury.

    People too often layer emotion onto the law, which leads to “it shouldn’t be that way!”

    That’s a complaint you should address to your legislator, not me.

  65. wr says:

    @Rafer Janders: “Does it give you pause to think that not one single federal prosecutor in 212 years has agreed with your interpretation of what the law is?”

    It has been well established in other discussions that the HL92 the law is exactly how HL92 chooses to interpret it — in fact, there is no interpretation possible, because the way he sees it is the unalterable Truth.

  66. wr says:

    @wr: Actually, that was a cheap shot beneath the level of this thread’s discourse. Apologies to all concerned, and please ignore it if you can.

  67. PD Shaw says:

    @Dave Schuler: “IMO in initiating direct contact with a foreign government the senators are violating the separation of powers or, at the very least, skating dangerously close to it. Do they have a right to do it? Probably, regardless of the Logan Act. Should they have done it? I don’t think so.”

    As far as the Logan Act and original understanding, the Federalist did not have much compunctions about separation of powers. Washington sent Chief Justice John Jay to negotiate what became the Jay Treaty, and had Representative James Madison write Presidential speeches to the Congress he was a member of. The Federalist supported a one-party system of the best and brightest. The underlying conflict in the late 1790s was the legitimacy or illegitimacy of party faction, which the Federalist tried to criminalize and thus lost the battle for history, at least until now.

  68. Barry says:

    @Steven L. Taylor: “I am not sure how Congress, basically pontificating in public, qualifies.”

    ‘Pontificating in public’ is a very, very bad description of what the Forty-Seven did. They sent a letter, specifically and deliberately as Senators, to a foreign government, with the stated purpose of undermining a potential treaty.

    What you and I do is ‘pontificating in public’.

  69. Barry says:

    @Slugger: “Seriously, what is the alternative plan here? Bomb Iran tomorrow to total rubble and repeat every two years? Convince Russia, China, and Germany to never allow the US a serious role in negotiations? Since Obama is the captain of the ship of state, then sink the ship? Show that America’s policies are made by Bibi?”

    Think ‘1984’. Continuous war, with the alleged causes and enemies subject to change as convenient.

  70. Barry says:

    @Paul L.: “Ted Kennedy Secretly Asked The Soviets To Intervene In The 1984 Elections”

    Source please? Forbes is not only batsh*t insane, but this is a ‘columnist’, otherwise known as ‘opinion’.

  71. Barry says:

    @Hal_10000: “The GOP went ape on Nancy Pelosi when she met with Assad (and rightfully so, in my opinion). ”

    And please note that Pelosi *met* with Assad. These guys did far, far more.

    In my casual recollection, members of Congress (including senior leadership) meet with foreign leaders all of the time.

    What the Forty-Seven did was way, way more than that.

  72. Barry says:

    @James Pearce: “Ah, Dr. Taylor….you’re asking the question the GOP base never seems to ask.

    “To what end?””

    Money, power, and sheer nihilistic destruction.