News broke Friday that John Kerry has been meeting with foreign sources, including the Iranian ambassador to the U.N., in order to promote a common foreign policy agenda with the Iranian regime (protecting the Iran deal) at the expense of the current Administration. There are many reasons to criticize Kerry for this, not least of which is that it is part of a lifelong pattern of siding with the arguments of the nation’s enemies. One argument against Kerry’s pursuit of a foreign policy at odds with that of the current Commander-in-Chief is that it is a federal crime, under the Logan Act. That may well be true – but it’s yet another reminder that Congress should repeal the Logan Act.
You probably remember that the Federalist presidency of John Adams is widely considered to be indelibly stained – despite Adams’ stature as a key Founding Father and his successful avoidance of full-scale wars with either France or England for which the new nation was still unready – by the passage of the Alien and Sedition Acts. These now-infamous statutes, passed in a climate of fear of foreign agitation as Europe erupted into what would become the Napoleonic Wars, are best known for the Sedition Act’s grant of plainly unconstitutional powers to the federal government to imprison newspaper editorialists critical of the government. The various Alien Acts (a few of which remain on the books in amended form) lengthened the period for immigrants to become citizens eligible to vote and expanded federal power to deport foreigners seen as dangerous or haling from hostile countries – issues still hotly disputed today. And among the package of laws passed in this period was the Logan Act of 1799.
The Logan Act was one of the earliest examples of that doleful American tradition, a law named (at least informally) for a particular individual. George Logan was a Pennsylvania state legislator, elected to office just five years after settling for good in the new United States, and loyal to the Jeffersonian Republican party (today’s Democrats). The United States was then embroiled in what historians call “the Quasi-War,” an undeclared naval war with France (then under the Directory government, soon to be replaced by Napoleon). Adams, no friend of the French, was attempting to play a delicate diplomatic game between England and our erstwhile French ally without a ruinous war. Logan, like most of his party, sympathized strongly with France, and traveled to France to open separate negotiations. Federalists were outraged.
While Logan was in France, the Federalist-majority Congress passed the act that still bears his name, currently 18 U.S. Code § 953:
Private correspondence with foreign governments
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.
You will notice how vague and elastic the language is here, extending to “correspondence or intercourse” with “any officer or agent” of a foreign government, and then turning on difficult questions of intent to influence, what qualifies as “disputes or controversies with the United States” or “measures of the United States” (presidential rhetoric? Congressional statutes passed over presidential objection?), who is qualified to give “authority of the United States” (can a leader of Congress claim this?), and yet carrying jail time for violations.
The old adage that “partisanship stops at the water’s edge” is far more the exception than the rule in American history, so the examples of politicians of all the major parties making common cause with foreign governments against the incumbent Administration are far too numerous to recount in full here. Sometimes, they are hawks seeking to work with allies against a dovish president; sometimes, doves working with allies or enemies to restrain a hawkish president; sometimes, like Logan, they actively believe the president has picked the wrong side in an international dispute; sometimes, they are working hand in glove with a foreign power to gain domestic partisan or electoral advantage.
Recent examples include the Trump/Flynn outreach to Russia; Republicans working with Benjamin Netanyahu over the objections of President Obama; Nancy Pelosi traveling to Syria to meet with Assad over the objections of President Bush; the various freelance diplomacy activities of Jimmy Carter and Jesse Jackson; Ted Kennedy working with the Soviets at cross purposes to the Reagan Administration; and, of course, Jane Fonda’s famous trip to Hanoi. These and more examples suggest that we should apply the usual caution that we should not seek to impose vague, complex, or elastic laws against our political enemies if we do not want them used against our friends.
All of these activities are subject to legitimate political criticism. But the dangers of giving the executive branch the power to criminalize them ought to be obvious. That’s especially true because the existence of a criminal statute gives prosecutors an excuse to open intrusive and draining investigations without ever bringing charges that will ever be tested in court. Experience shows the latter to be a test that few prosecutors are willing to hazard: not one person has been convicted under the Logan Act in 219 years on the books (which means, among other things, that its constitutionality has never been meaningfully litigated). Only two indictments have ever even been brought, one of a Kentucky farmer under (ironically) the Jefferson Administration, the second at the behest of Daniel Webster in 1852 in a dispute over competing plans to build a railway in Mexico.
A law that sits on the books for two centuries without being used – despite being invoked publicly in numerous high-profile political controversies – is not really a law at all. Enforcement at that point is far too arbitrary, and anyone charged under the Logan Act at this late date would have a strong fairness argument, and potentially a legal argument, that the statute is being selectively applied for political purposes after lying dormant for so long.
It’s high time to end a charade that has been going on since 1799. The fact that Kerry has potentially put himself in the same legal position as General Flynn – worse, since Flynn was apparently acting for a duly-elected incoming presidential Administration – ought to give political cover to both parties to join together and repeal a statute that has never done the nation any good in more than two centuries, and could – if used seriously against a nationally prominent figure in a major controversy – do our Constitutional structure and increasingly combustible political climate great harm.