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.
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.
In its initial filing to pull the prosecution, the Justice Department argued that "The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn's statements were material even if untrue.” There was, in short, no justification for the bureau to interview Flynn—indeed, they were getting ready to close the investigation of him only weeks before—and, hence, whether he lied or not was not relevant. This is true enough if the investigation was only a counterintelligence investigation. But this ignores Flynn’s more obvious violation of the law under the Logan Act.
To say most commentators thought then, and think now, that the prospect of prosecuting Flynn under the Logan Act would be a stretch is an understatement. Many saw even mentioning the act as a sign of just how badly the government was out to get Flynn. After all, this was a law that had been on the books for more than two centuries without a single conviction. In fact, no one had even been charged with its violation since 1853.
It’s understandable why. In conjunction with passage of the Alien and Sedition Act, the Logan Act was seen as a partisan shot across the bow aimed at Republicans by Federalists. With the Adams’ administration unable to conclude a deal to end the naval Quasi-War with France, George Logan, a Republican and private citizen traveled to Paris in an effort to negotiate an end to the conflict. Congress, with Federalists in control of both chambers, passed an act banning such behavior. But after the Republicans gained control of Congress and the White House with the “Revolution of 1800.” and the gradual demise of the Federalists as a party, there were far fewer partisan divides over foreign policy. It appears there just were not that many George Logans after George Logan.
More recently, the Logan Act is seen as treading on the First Amendment. With the modern Supreme Court widening speech protections to almost anything that falls just short of a connection to criminal design or activity, the law would seem to be particularly difficult to rest a prosecution on. Trips by citizens to visit and discuss U.S. policies with the likes of Kim Jong-un, the Castros and Bashar al-Assad might be highly imprudent, but the likelihood of getting a conviction under the law would appear small to non-existent.
Although many of these trips and conversations could fall under the Logan Act’s literal strictures, it’s a staple of American elites—be they businessmen, sports stars, academics, or former senior officials, (including former presidents)—to travel the world and put their two cents in about U.S. policies and relations with other countries. Any administration suggesting a possible prosecution would be criticized as attempting to shut down debate.
However, before simply dismissing the Logan Act altogether as a dead letter, it’s worth thinking about whether its underlying logic is still worth keeping on the books in some limited form. In 1800, then-Rep. John Marshall stated that, under the Constitution, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” Marshall’s point was not that an administration’s policies should not be open to debate or that Congress didn’t have constitutional tools at hand to weigh in on these matters. Rather, Marshall was just making clear that, by vesting “the executive power” with the president, the Constitution was attempting to fix a problem that had existed under the Articles of Confederation in which the absence of a unitary executive had produced, among other dysfunctions, a mash-up of diplomatic initiatives. When originally introduced in the House, the bill’s sponsor, Rep. Roger Griswold, said its intent was to “guard by law against the interference of individuals in the negotiation of our executive with the government of foreign countries.” In short, the view was that having more than one hand on the wheel of statecraft can generate policy incoherence and the misreading of US intentions by both allies and adversaries.
So, how is one to navigate between the poles of free speech, congressional prerogatives, and the need for coherent statecraft?
Well, one thing to keep in mind is that, while Americans are free to speak their mind at home and abroad, their ability actually to conclude and implement a deal with a foreign leader is nil. That is, no matter how important a figure they may be, they are not in a position to deliver on the terms of any proposed deal. Even representatives and senators, while they can push a policy of their choice forward legislatively, still need an administration to agree to sign a measure into law and, even then, take it seriously enough to carry out and implement it. As aggravating to administrations as non-administration individuals may be when engaged in talks with foreign officials, the actual harm, if any, would seem to be manageable.
That said, as a president’s term in office draws closer to the end, the prospect of a foreign official calculating that there is something to be gained by engaging with a competing party’s presidential candidate or his team would appear to grow substantially. One can imagine that a president’s singular sway over foreign policy would start to be diluted or even lost once foreign leaders decided there was another prospective policymaking path to pursue. As an example, think of candidate Richard Nixon’s efforts in 1968 to persuade South Vietnam to stay away from the peace talks involving Washington, Moscow, and Hanoi that the Johnson administration was pursuing. This problem is even truer now that we have accepted the idea that presidential transition teams are effectively governments-in-waiting, with a winning candidate doing way more than deciding on new furniture for the Oval Office and which John or Mary Doe to appoint under secretary of this or that department.
It’s true that, when talking about transitions, it’s only a little longer than two months and we like to think of a new administration as being ready to go on Day 1. But whether that requires private conversations with foreign governments on disputes between the U.S. and those governments that run counter to existing policies is far from clear. By the time someone is elected, there should be no real surprise on where they stand on this or that issue, broadly speaking. Moreover, such conversations may not be all that useful. As much prep work an incoming team might do, it can never make up for the deliberative process that takes place once an administration is up and running. Lots of party platform ideas make sense in the abstract but then fall flat or are in need of adjustments as more facts, circumstances and equities are taken into consideration by a fully functioning administration.
Although it’s true that the vast majorities of presidential transitions have gone relatively smoothly, our increasingly polarized elections can make the weeks between November’s election and the president’s swearing-in seem like an eternity. It may seem to be a relatively small thing but keeping the president’s authority effectively intact during this period seems constitutionally and logically the appropriate thing to do.
If ever challenged, the Logan Act would probably be deemed unconstitutional for being drawn overly broad. But, in turn, under the Constitution, we don’t elect presidents for “almost” four-year terms. As the SSCI report summarily notes, Trump and his transition team’s effort to kill the U.N. Security Council resolution, while “unsuccessful,” “caused confusion among Security Council member nations, because they did not know with whom they should be dealing with regard to American diplomacy; a lame-duck administration, or the incoming one.”
After November’s election, the next Congress should hold hearings on repealing the Logan Act and replacing it with a law that, at a minimum, would require party candidates and campaign staffs, and then a winning candidate and his transition team, to record every meeting and call with a foreign government official and the substance of the discussion, which would then be publicly available. The goal would be to make presidential-wannabes more circumspect as they run for office or as they transition to moving into the Oval Office. Somewhat like the Foreign Agent Relations Act, under this new law, fines could be set for conversations that move from informational to advocacy. Presumably, some foreign governments—as it appears to have been the case with the Russians using an undeclared intelligence agent to work with Trump campaign chair Paul Manafort on a Ukrainian “peace plan”—will use “cut outs” to reach candidates and his/her team to try and skirt the reporting requirement but the law could include a provision making such efforts illegal, as well. The point is to draw a line where one no longer exists.
The Logan Act is a dead letter. But its concern with having diverse voices speaking for the government is still an issue today, especially if those voices might within little more than two months be the government. A new law would be a good reminder to both parties that we only have one president at a time.
Photograph by Drew Angerer/Getty Images.