One President at a Time

The Logan Act may be a dead letter, but its concern about just who is speaking for the government is still an issue.

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There is any number of noteworthy findings in the Senate Select Committee on Intelligence’s most recent report on Russian campaign interference—with most already having been written about. One finding likely to go largely ignored, however, is the number of violations of the 1799 Logan Act by the Trump transition team. 

The Logan Act prohibits private citizens from engaging in “any correspondence or intercourse with any foreign government or any officer or agent thereof, in relation to any disputes or controversies with the United States.” According to the Senate report, incoming National Security Adviser Gen. Michael Flynn made calls and had discussions with the Russian ambassador to the U.S. in an attempt to dissuade Russia from supporting a U.N. Security Council Resolution critical of Israeli construction of settlements in the West Bank and to temper Moscow’s response to the Obama administration sanctions that were laid on Russia as a result of its interference in the 2016 presidential election. But, apparently, Flynn was not the only member of the transition team involved in these activities. According to the committee report, Jared Kushner, the president’s son-in-law, admitted to assigning various team members “to work the phones and try and convince other countries to oppose the [Security Council] resolution.” “I remember,” Kusher says, “I was talking with Flynn. I was talking with Nikki Haley. I was talking to Rex Tillerson. I was talking to Reince Priebus. I was talking to Steve Bannon. And we were all making phone calls trying to do everything we could.” And, indeed, even President-elect Trump made a call to Egyptian President al-Sisi to try and stop the Egyptians from sponsoring the resolution.

In spite of the clear language of the law, there has been no effort on the part of the Department of Justice to prosecute anyone on the Trump transition team for violating the Logan Act. It did of course come up in the case of Gen. Flynn. Before the FBI interview with now National Security Adviser Flynn in late January about his calls with the Russian ambassador in late December 2016, the head of FBI counterintelligence asked those involved in coordinating the interview whether the point of the interview was to “get him to admit to breaking the Logan Act.” And, even before that, according to a note taken of the January 5, 2017, Oval Office meeting between principals FBI Director Comey, Acting Attorney General Sally Yates, and President Obama, Vice President Biden brought up the issue of the Logan Act in relation to Flynn’s calls. 

Instead, Flynn was indicted and pleaded guilty to lying to the FBI agents in his interview about the content of the calls, not the fact of the calls. And the current debate is centered instead on whether the Justice Department can drop the case against Flynn this late in the proceedings. The matter is now under review by the D.C. Circuit Court of Appeals. 

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  1. Avatar photo
    Paul Britton

    “There ARE a number of findings. . . “

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  2. Avatar photo
    Bill Dyer (aka Beldar)

    On January 8, 1918, President Woodrow Wilson addressed Congress on "War Aims and Peace Terms." After a lengthy preamble, Wilson said:

    ---begin quote---

    The program of the world's peace, therefore, is our program; and that program, the only possible program, as we see it, is this:

    ---end quote---

    And he then laid out fourteen points, the last of which read:

    ---begin quote---

    XIV. A general association of nations must be formed under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike.

    ---end quote---
    link: https://millercenter.org/the-presidency/presidential-speeches/january-8-1918-wilsons-fourteen-points

    Reasonably enough, and exactly as Wilson intended, most of the world understood this to be a commitment made by the United States to join this proposed general association, this League of Nations, upon the conclusion of a general peace treaty ending World War 1. But like anything any POTUS ever says, even when speaking in his official capacity of Chief Executive, Wilson's promises were subject to a pre-existing limitation — the Constitution of the United States, which requires the Senate's consent for all treaties between the U.S. and any government. Most of the world hadn't studied the Constitution or American politics, and failed to heed the several prior and then-recent occasions on which proposed treaties had been refused ratification by the Senate. They were therefore genuinely shocked when the Senate twice refused to ratify the Treaty of Versailles, even with substantial and substantive proposed reservations thereto.

    Moral to the world: Don't presume that the U.S. Constitution is just fine print which you can ignore without peril.

    And we don't need a new law to fix this non-existent problem. We actually already have in place legislation regarding transition teams — the Presidential Transition Act of 1963, as frequently amended since then. LINK: https://www.gsa.gov/governmentwide-initiatives/presidential-transition-directory/external-transition-resources/guiding-legislation-presidential-transition-directory

    All that legislation is explicitly and implicitly subject to another constitutional limitation, viz, the requirement that after the periodic functioning of the electoral college, a POTUS for the following four-year term will be elected, and that such president-elect's legal authority cannot precede the taking of the duly administered oath of office.

    And even then, it may turn out that any given POTUS-elect — and/or those purporting to speak on his or her behalf — will turn out to be all hat and no cattle, like Wilson, and like Trump. If the U.S. failure to join the League and the resulting failure of the Treaty of Versailles weren't enough to put the world on actual (in addition to constructive) notice of the limitations on any POTUS even after he takes office, then surely WW2 was. Whether it's Putin, or the mullahs in Teheran, or Kim Jong-Il, by now, I think we can assume that this peculiarity of the United States government is indeed known, Khaleesi.

    Finally: No discussion of the Logan Act should omit mention of one almost-self-admitted violator thereof, John Forbes Kerry. When he met in secret with representiatives of the North Vietnamese and Viet Cong delegations to the Paris Peace Talks, Kerry was still a commissioned officer in the United States Naval Reserve and the aide to a Pentagon admiral — having just claimed claimed a precipitously early exit from his Swift Boats tour in Viet Nam based on three very dubious Purple Hearts. Kerry returned home to throw his (or someone's) medals over the White House fence, and to famously brand his fellow Americans as war criminals and baby-killers before Sen. Fulbright's Senate Foreign Relations Committee. In arguing that the U.S. should accept every point demanded in Paris by our and our South Vietnamese ally's enemies — amounting to a complete, immediate, and unilateral withdrawal of all American forces and the cessation of all American support — Kerry established his own guilty familiarity with the Logan Act:

    ---begin quote---

    The Chairman: The congress cannot directly under our system negotiate a cease-fire or anything of this kind. Under our constitutional system we can advice the President. We have to persuade the President of the urgency of taking this action. Now we have certain ways in which to proceed. We can, of course, express ourselves in a resolution or we can pass an act which directly affects appropriations which is the most concrete positive way the Congress can express itself.

    But Congress has no capacity under our system to go out and negotiate a cease-fire. We have to persuade the Executive to do this for the country.

    Mr. Kerry: Mr. Chairman, I realize that full well as a study [sic — probably should be "student"] of political science. I realize that we cannot negotiate treaties and I realize that even my visits in Paris, precedents had been set by Senator [Eugene J.] McCarthy [(D-Minn.)] and others, in a sense are on the borderline of private individuals negotiating, et cetera. I understand these things. But what I am saying is that I believe that there is a mood in this country which I know you are aware of and you have been one of the strongest critics of this war for the longest time. But I think if we can talk in this legislative body about filibustering for porkbarrel programs, then we should start now to talk about filibustering for the saving of lives and of our country.

    ---end quote---

    Given that the Dems are still trotting this miserable piece of crap out at their national conventions, they surely have an "unclean hands" problem in criticizing anything any GOP president's transition team has done.

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  3. Trichwages

    “This problem is even truer now that we have accepted the idea that presidential transition teams are effectively governments-in-waiting” - we have? Who is this “we?”

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  4. Avatar photo
    Pat Riot

    Saying Flynn violated the Logan Act is like saying a bank robber was also guilty of jaywalking when he ran to his getaway car.

    All of the evidence points to Flynn actively and deliberately undermining the US national security so he could appease the Russians in order to get them to help get Trump elected. That's why he copped a plea. That's why he immediately knew he was caught and in big trouble.

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  5. Avatar photo
    DougAz

    It is always just amusing to observe (not you Gary), that when the Founders say something one side likes, as in the non-legal, useless "Federalist Papers" - real ACTS passed by Congress and signed by the President, are tread upon as not important.

    Since the Logan Act has been around for 200 years, one would reasonably think if it was deemed somehow UnConstitional, that first - the guys that wrote the Constitution would have changed it during their lifetime. Or any number of Sitting Congress since then.

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    1. Avatar photo
      Bill Dyer (aka Beldar)

      There has to be a successful prosecution based upon it, including a conviction and judgment of guilt, and then an appeal therefore, to establish the Logan Act's constitutionality or lack thereof.

      Its abuse by the FBI in its investigation of Carter Page, however, is a pretty good reason for some future Congress to strike it from the U.S. Code. That ought to be bipartisan, but in the current climate or anything like it, won't be.

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      1. Avatar photo
        DougAz

        I learned more about the Logan Act here, the source of truths 😉 https://en.m.wikipedia.org/wiki/Logan_Act#:~:text=Supp.,Act%20in%20an%20official%20Memorandum

        My take away is that powerful politicians get away with breaking the law. It is a law. It was signed by some of the same people who wrote and signed the Bill of Rights....

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  6. Avatar photo
    Bill Nelson

    The Logan act is indeed a dead letter. And while there is a real issue (not a danger) of an outgoing administration torpedoing an incoming, this is not much different than the pushback an administration receives from the foreign affairs establishment.
    In the early 20th century, the British government had to deal with Whitehall, the Cairo office and the India office. It was the India office who favored the Saudi with the Whabbis, over other competing groups favored by Cairo or Whitehall.
    I favor a requirement for the new administration to provide all contacts and discussions, and intelligence, to the outgoing administration, realizing that there will be many attempts to skate around the rules.

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  7. Avatar photo
    Philbnichols

    Yeah. Big fan of 1 Prez at a time.

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  8. Avatar photo
    Douglas Brown

    As I read this I felt as if the author was on a Debate Roller Coaster - making points then challenging them. I found it thought provoking and helpful. His point that we need to respect the current Presidency while in transition mode is well taken. Yet, I felt that a same inverse point, given the arguments here, could equally apply to in-term Presidency respect for the incoming administration. There are sufficient reasons to believe that was not done. Your statement "record every meeting and call with a foreign government official and the substance of the discussion, which would then be publicly available. Substitute out "foreign" with "incoming" and the same points can be made about the in-term Presidency internal communication!

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  9. Avatar photo
    Victor Clairmont

    I would be fine with it being repealed for many of the reasons you outline. And I also agree that more clarity in statecraft for incoming administrations would be good. Also, while I do not think an incoming administration should undermine a sitting one, I also believe a sitting one should not undermine an incoming one.

    It will be interesting to see what Inspector Horrowitz pulls up later this year.

    Thanks Mr Schmitt for the breakdown!

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