Bench Memos

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Night of the Unliving Logan Act


On the Corner, Amy Holmes asks whether there is anything to be done about Barack Obama’s behavior in Iraq in July–if he did, as Amir Taheri writes, try to negotiate with the Iraqi government in such a way as to undermine Bush administration relations with it.  Amy mentions something called the International Commerce Act of 1798 that Obama might have violated; I think she is actually referring to what is popularly called the Logan Act passed by Congress the following year (which Jonah mentioned in passing earlier yesterday).

In 209 years, there has never been a single prosecution under the Logan Act, although the frequency with which private citizens (think Jesse Jackson) and non-executive branch officials (think of the whole laughable career of Joe Biden) attempt to influence foreign governments contrary to U.S. policy has kept the Act “alive” in the realm of political controversy. 

Some commentators see constitutional defects in the Logan Act.  They may be right.  Here’s the whole text of the Act as it still appears in the U.S. Code:

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.

I’ll ask my favorite former federal prosecutor, Andy McCarthy: how would you like to prosecute a case under this statutory language?  There are all kinds of problems with vagueness, overbreadth, evidentiary sufficiency–before we ever get to the First Amendment free-speech problems. As long as this dead letter remains on the books, its greatest utility is as a symbolic club to beat one’s political opponents vigorously about the head and shoulders.  This use of it I can heartily endorse.  But in a court of law?  Let’s not. 


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