Liberals have a favorite new legal doctrine. The Logan Act is a federal law enacted in 1799 that, in theory, penalizes American citizens who try to influence foreign governments “without authority of the United States.” Even though the law is still on the books, The Scrapbook describes the Logan Act as theoretical because no one’s ever been successfully prosecuted for violating it. The last formal indictment of anyone under the Logan Act occurred in 1803, when a Kentucky farmer committed the grievous crime of writing a spirited newspaper article. The entire law is two paragraphs so vague that legal scholars have suggested it would be unlikely to survive constitutional scrutiny should anyone be daft enough to try to prosecute someone under it.
Despite this, liberals are currently engaged in a desperate bid to resurrect the Logan Act. As of this writing, 240,776 people have signed a petition on the White House website calling for the arrest and prosecution of 47 Republican senators under the Logan Act, for signing a letter authored by Arkansas senator Tom Cotton, expressing concern about the process by which the Obama administration is trying to forge a nuclear deal with Iran. “This is a clear violation of federal law. In attempting to undermine our own nation, these 47 senators have committed treason,” reads the petition. Now, violating an obscure federal law is one thing, but last we checked treason is punishable by death.
This effluvium has been bubbling up for some time—indeed, a cursory scan of blogs and social media reveals that Rick Perry, Eric Cantor, John Boehner, Mitt Romney, Jon Huntsman, Mitch Daniels, and George W. Bush (among others) have all been publicly accused of violating the Logan Act in the last few years. Less excusable is how many media outlets—from Vox.com to NPR to MSNBC—have picked up this hot new legal theory and alternately amplified the charge or imbued it with whatever fraying credibility the media still possess. And that’s exactly what happened following the release of Cotton’s letter.
To further illustrate how ludicrous the Logan Act is, the statute doesn’t even define what it means to act “without authority of the United States.” As American University law professor Steve Vladeck observes, “Although most assume that means without authority of the Executive Branch, the Logan Act itself does not specify what this term means, and the State Department told Congress in 1975 that ‘Nothing in section 953 . . . would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.’ ”
So even if the Logan Act could be applied in some fashion, it’s difficult to argue that members of the Senate—who are constitutionally tasked with ratifying treaties—aren’t covered by the phrase “authority of the United States.”
It’s worth noting in this context that the laundry list of incidents in recent decades where Democrats in Congress have tried to directly undercut a Republican president’s foreign policy is long and appalling and very much unlike Cotton’s benign attempt to remind the president he is obligated to give the Senate some deference. (For more on the Democratic attempts to subvert U.S. foreign policy, see the editorial “A Contrived Controversy” on page 8 of this issue.)
Of course, shortly after Cotton’s letter was released, Secretary of State John Kerry conceded that the Iran deal wasn’t “a legally binding plan.” Far from violating the Logan Act, casting doubt upon the success of informal agreements made by the president with eschatological mullahs is more accurately called “having an opinion” and is protected by a much more settled legal doctrine—the First Amendment.
Still, there’s no better illustration of the fecklessness of the Obama administration’s foreign policy than the fact that progressives think America-hating Islamic theocrats should be taken at their word, while simultaneously fuming that nearly the entirety of the opposition party in the Senate should be thrown in jail.
