Repeal the Logan Act!

Imagine that. Has this thing ever been enforced in modern times?

Update: There’s a history of the Logan Act here. Apparently, there’s never been a prosecution under the Act.

FILED UNDER: General
Dave Schuler
About Dave Schuler
Over the years Dave Schuler has worked as a martial arts instructor, a handyman, a musician, a cook, and a translator. He's owned his own company for the last thirty years and has a post-graduate degree in his field. He comes from a family of politicians, teachers, and vaudeville entertainers. All-in-all a pretty good preparation for blogging. He has contributed to OTB since November 2006 but mostly writes at his own blog, The Glittering Eye, which he started in March 2004.

Comments

  1. Wayne says:

    It needs to be enforced.

  2. the Pirate says:

    I hear Fitzgeralg has some free timeon his hands now….

  3. Alex Knapp says:

    I assume that you’re referring to Nancy Pelosi in this. Well, from the following text of the act, she’s probably exempt:

    Any citizen of the United States, wherever he may be, who, without authority of the United States…

    I think she could make a good case that, as Speaker of the House, she can act with the authority of the United States…

  4. Anderson says:

    Along Alex’s lines, I’ve seen a reference somewhere to a legal opinion from State or Justice that the act can’t apply to sitting members of Congress. If I weren’t distracted by that pesky “job” of mine, I’d track it down …

  5. Dave Schuler says:

    Actually, I was thinking of Jesse Jackson’s various meetings with foreign governments and the trade junkets by the governors of practically every state. The occasion for the comment was an op-ed in the WSJ that mentioned Speaker Pelosi.

    IMO this is a law that has become unenforceable merely through disuse and, consequently, should be repealed.

  6. Dave Schuler says:

    And, specifically, I think there are enough barriers between the political parties without searching through superannuated laws for grounds for prosecution.

  7. The democrats are consistent. Free form understanding of what the words in the constitution mean and now free form understanding of what the words in statute mean. Results based law is great until you don’t like the results.

  8. Dave Schuler says:

    There’s a complete history and rundown of the Act here. It seems to imply that, at least in the opinion of the Department of State, it does apply to sitting members of Congress.

  9. Someone may have gotten a copy of the logan act to Nancy.

    WASHINGTON (AP) – House Speaker Nancy Pelosi, deflecting White House criticism of her trip to Syria, said Friday she thinks the mission helped President Bush because it showed the United States is unified against terrorism despite being divided over the Iraq war.
    Pelosi, D-Calif., met with Syrian President Bashar Assad in Damascus earlier this week, against the president’s wishes.

    “Our message was President Bush’s message,” Pelosi said in a phone interview with The Associated Press from Portugal, where she stopped briefly en route back to the United States.

    “The funny thing is, I think we may have even had a more powerful impact with our message because of the attention that was called to our trip,” the California Democrat said. “It became clear to President Assad that even though we have our differences in the United States, there is no division between the president and the Congress and the Democrats on the message we wanted him to receive.”

    Bush earlier in the week assailed Pelosi for making the trip to Damascus, saying it sent mixed messages to the Syrian government, which his administration considers to be a state supporter of terrorism.

    Of course, reasonable minds can see a difference in Nancy and George’s position.

    Pelosi surely knew that as speaker — third in the succession line to the presidency — her high-profile presence in Damascus would be read as a contradiction of Bush’s no-talk policy. No matter that she claimed to have stuck closely to administration positions in her conversations with Assad, smiling photos of Pelosi and the Syrian president convey the unspoken message that while the U.S. president is unwilling to talk with Syria, another wing of the government is. Assad made good use of the moment.

    Now the question is, will the left now castigate Nancy for being the running dog with arch enemy of the people Bush?

  10. Wayne says:

    Alex
    “I think she could make a good case that, as Speaker of the House, she can act with the authority of the United States”

    No she doesn’t. Congress controls the purse strings. Although they influence executive power by threatening to cut funds, they do not have executive powers. They can authorize war but cannot command troops to conduct wars. They can ratify treaties but cannot initiate treaties.

    She clearly overstepped her position.

  11. Billy says:

    Not so fast Wayne. From A Constitutional Structure for Foreign Affairs by Louis Fisher, 19 Ga. St. U. L. Rev. 1059 (2003) (internal citations omitted):

    “The same Congress that passed the notorious Alien and Sedition Acts gave birth to the Logan Act, which provided for fines and imprisonment to punish American citizens who carried on unauthorized correspondence or intercourse with foreign governments for the purpose of influencing American policy. A strict reading of Jefferson’s passage would lead to a total monopoly by the President of any communication with another nation about U.S. foreign policy. However, hundreds of individuals have defied the Logan Act by meeting with foreign leaders and attempting to negotiate solutions to pending problems. Only one American was indicted, and he was found not guilty. If ever there is a dead letter in the law, it is the Logan Act and the stilted thinking that inspired it.”

    So, while under a “strict” reading you would be correct, for its life, the government has consciously abrogated enforcement of the Logan Act. Such abrogation could lead to the Courts striking it down under the doctrine of desuetude (and the pattern of behavior and enforcement here is the textbook case for a desuetude defense, should any prosecution under the Logan Act arise).

    Furthermore, the courts have determined that any “ambiguity” in the Act, i.e., whether Congress would have “authority of the United States,” should “be resolved in favor of lenity.” See Bell v. United States, 349 U.S. 81, 83 (1955). In other words, the Supreme Court has not taken such a strict reading, and Pelosi likely has plenty of leeway, legally speaking, to do that which her Republican counterparts are also doing (if anything, as speaker, she has more authority).

    In short, Dave is 100% correct, and all this talk about a prosecution of the Speakr under Logan is just so much nonsense. There’s only a tenuous legal argument there, and the political ramifications of prosecuting a sitting speaker for something like this are akin to declaring nuclear partisan war.

  12. McGehee says:

    Billy, while you’re correct in practical terms, I had the impression Wayne (in his second comment) was considering the statute purely on the face of Congress’ intent on passing it, in which case desuetude would have no direct bearing.

    I agree with you and Dave on the practicalities as they stand — but in theory Congress could, if it so chose, re-empower the Logan Act, thus effectively wiping away any problems of desuetude.

    They won’t, but they could.

  13. G.A.Phillips says:

    Enforce the Treason act!

  14. BillB says:

    If one checks Article I for the powers of Congress, one will find that the Congress was delegated no authority to involve itself in foreign affairs. Treaties, Ambassadors, etc are the realm of the Executive, with the sole interaction being approval or disapproval by the Senate. Pelosi is not in the Senate and thus, regardless of the “3rd” in line position, holds no authority to be involved in diplomatic (Even Senators are not delegated authority in the diuplomatic realm) concerns. Her concerns are restricted to the powers delegated to the House of Representatives by the Constitution and no more.

    In addition, while having no real effect on the issue, I question the authority of Congress to pass such an act as the Logan Act. I require citations as to the exact portions of the Constitution that delegate such authority to Congress.

  15. Charles Burck says:

    I did not spend twenty years in the military to see some arrogant bimbo think she has the right to set her own agenda against the policy set out by the president. He said no talking, her excuse that she was only restating the presidents position is bunk. She is guilty of a crime whether it is the Logan act , treason or some form of espionage she needs to be held accountable. Would I be innocent of murder if I shot and killed a foreign leader because the president had said do not talk to this person because this person is a terrorist ? We are at war with terror so I would only be helping the president! The justice department needs to dig in and put this want to be president behind bars. Then she can run for president of her cell block. She was elected to speak for the people of her state not run her own agenda. If she cannot or will not support the country get rid of her.