Volume One, pages 167-173 of special counsel Robert Mueller’s report shows that the Logan Act is dead law.
The Logan Act governs unlawful interactions by U.S. citizens with foreign governments. It says that “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 … 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.”
Now consider Mueller’s finding of how, in December 2016, Michael Flynn, Jared Kushner, and even President-elect Donald Trump acted to prevent United Nations passage of a resolution condemning Israel for its settlement construction in the West Bank.
Mueller accurately observes that the Obama administration wanted that U.N. vote to pass without a veto. But he also notes that “the [Trump] Transition Team regarded the vote as a significant issue and wanted to support Israel by opposing the resolution. On December 22, 2016, multiple members of the Transition Team, as well as President-Elect Trump, communicated with foreign government officials to determine their views on the resolution and to rally support to delay the vote or defeat the resolution.”
This activity, contrary to the wishes of the authorized foreign policy actor (the Obama administration), would appear to be a prima facie violation of the Logan Act.
But then Mueller offers more evidence. His report notes that Flynn told special counsel investigators that “he informed [then-Russian Ambassador to the U.S. Sergei] Kislyak about the vote and the Transition Team’s opposition to the resolution, and requested that Russia vote against or delay the resolution. Later that day, President-Elect Trump spoke with Egyptian President [Abdel-Fattah el-Sissi] about the vote. Ultimately, Egypt postponed the vote.”
That’s further evidence of a breach of the Logan Act in that it suggests successful, unauthorized effort to affect a foreign government’s foreign policy.
Mueller then notes that the U.N. resolution eventually passed with Russian support and a U.S. abstention. However, team Trump’s failure to acheive their desired outcome cannot be regarded as exculpatory. After all, the Obama administration’s abstention evidences its policy was in direct contradiction with the Trump transition team’s effort in defeating the U.N. vote.
I am not saying Trump officials should have been prosecuted here. Incidentally, if they were, others such as John Kerry would also have to be prosecuted over his Iran dealings.
Instead, I am observing that the Logan Act is completely dead. Because if the Trump transition team’s conduct here isn’t a breach of the Logan Act, then it’s very hard to see what could be. I suspect that Mueller’s prosecutors concluded that the rarity of indictments under the Logan Act (there have been only two in history), the absence of any successful prosecutions, and the questionable constitutionality (Sixth Amendment) of the act means it’s dead law.
