Logan Act Explained

Shorttitle:Logan Act
Longtitle:An Act for the punishment of certain Crimes therein specified.
Enacted By:5th
Introducedin:House
Introducedby:Roger Griswold (FCT)
Introduceddate:December 26, 1798[1]
Passedbody1:House
Passeddate1:January 17, 1799
Passedvote1:58–36
Passedbody2:Senate
Passeddate2:January 25, 1799
Passedvote2:18–2
Signedpresident:John Adams
Signeddate:January 30, 1799
Amendments:P.L. 103-322, § 330016(1)(K)
Scotus Cases:United States v. Curtiss-Wright Export Corp.

The Logan Act (enacted) is a United States federal law that criminalizes the negotiation of a dispute between the United States and a foreign government by an unauthorized American citizen. The intent behind the Act is to prevent unauthorized negotiations from undermining the government's position.[2] The Act was passed following George Logan's unauthorized negotiations with France in 1798, and was signed into law by President John Adams on January 30, 1799. The Act was amended in 1994, changing the penalty for violation from "fined $5,000" to "fined under this title"; this appears to be the only amendment to the Act.[2] Violation of the Logan Act is a felony, punishable with imprisonment for up to three years.

Only two people have ever been indicted on charges of violating the Act,[3] one in 1802 and the other in 1852.[4] Neither was convicted.[4]

History

In 1798, amid tensions between the U.S. and France, President Adams sent three envoys to France to negotiate. Negotiations were unsuccessful. Dr. George Logan of Pennsylvania, a state legislator and pacifist, in 1798 engaged in negotiations with France as a private citizen during the Quasi-War.[2] [5]

Kevin Kearney, writing in a case comment for the Emory Law Journal, described Dr. Logan's activities in France:

Despite the apparent success of Logan's mission, his activities aroused the opposition of the Federalist Party in Congress, who were resentful of the praise showered on Logan by oppositional Democratic-Republican newspapers. Secretary of State Timothy Pickering, also of Pennsylvania, responded by suggesting that Congress "act to curb the temerity and impudence of individuals affecting to interfere in public affairs between France and the United States." The result was that Rep. Roger Griswold introduced the Logan Act.[6] It was pushed through by the Federalist majority in Congress by votes of 58–36 in the House and 18–2 in the Senate. Logan himself could not be punished by the Logan law, since the Constitution does not allow ex post facto, or retroactive laws: that is, laws that punish a person for actions taken before the law was enacted, and that were not illegal at the time they were committed. Rather, the intent was to discourage future Logans from conducting foreign policy at cross purposes with the current administration.

Subsequently, Logan himself was appointed and then elected as a Democratic-Republican to the United States Senate from Pennsylvania, and served from July 13, 1801, to March 3, 1807. He was unsuccessful in getting the Logan Act repealed. Despite the Logan Act, he went to England in 1810 on a private diplomatic mission as an emissary of peace in the period before the outbreak of the War of 1812, but was not successful.

During the twentieth century, with the Supreme Court paying greater attention to cases involving the First and Fifth amendments to the Constitution, and with the possibility of American foreign policy being more influenced by private individuals becoming more of a prominent issue in politics, there have been more cases potentially involving the Logan Act. Still, the Logan Act has been rarely enforced, possibly because prosecutors have been concerned that speech between a private citizen and a foreign government may still qualify as free speech and be protected in that regard.

Text

1 Stat. 613, January 30, 1799, codified at 18 U.S.C. § 953 (2004).

Constitutional authority for foreign relations

Article II, Section 2, Clause 2 of the United States Constitution includes the 'Treaty Clause,' which empowers the President of the United States to propose and chiefly negotiate agreements, which must be confirmed by the Senate, between the United States and other countries, which become treaties between the United States and other countries after the advice and consent of a supermajority of the United States Senate.

In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), Justice Sutherland, writing for the Court, observed,

Accusations of violations

In general, the Act is intended to prevent unauthorized American citizens from interfering in disputes or controversies between the United States and foreign governments. Although attempts have been made to repeal the Act, it remains law and at least a potential sanction to be used against anyone who without authority interferes in the foreign relations of the United States.

The US government has threatened to use the Act to stop Americans from negotiating with foreign governments. For example, in February 1941 Under Secretary of State Sumner Welles told the press that former President Herbert Hoover might be a target for prosecution because of his negotiations with European nations over sending food relief.[7]

19th century

Only two indictments have ever been handed up under the Logan Act, both in the 19th century. The first occurred in 1803 when a grand jury indicted Francis Flournoy, a Kentucky farmer, who had written an article in the Frankfort Guardian of Freedom under the pen name of "A Western American". In the article, Flournoy advocated for the creation of a new independent state, not part of the US, in North America that would ally with France. The United States Attorney for Kentucky, an Adams appointee and brother-in-law of Chief Justice John Marshall, went no further than procuring the indictment of Flournoy, and there was no further prosecution of him. The purchase of the Louisiana Territory later that year appeared to cause the separatism issue to become moot, and the case was abandoned.[2]

In 1852, Jonas Phillips Levy became the second, and to date the last, person to be indicted under the Logan Act. Levy, an American merchant and sailor who was living in Mexico at the time, had acquired a grant to build a railway across the Isthmus of Tehuantepec, the narrowest point across Mexico. Secretary of State Daniel Webster had been pressuring Mexico to accept a treaty that would allow a different group of American businessmen to build the railway. Levy wrote a letter to Mexican President Mariano Arista urging him to reject Webster's proposed treaty, prompting Webster to seek an indictment against Levy for violating the Logan Act. Federal prosecutors were forced to dismiss the case after Arista refused to hand over the original copy of the letter, depriving them of the evidence they needed to convict Levy.

20th century

In 1975, Senators John Sparkman and George McGovern traveled to Cuba and met with officials there. In considering that case, the U.S. Department of State concluded:

21st century

In June 2007, Representative Steve King introduced legislation that would prohibit Speaker of the House Nancy Pelosi from drawing on federal funds to travel to foreign states which the U.S. deemed to sponsor terrorism.[8] The amendment was not adopted.

In March 2015, 47 Republican senators released an open letter to the Iranian government regarding President Barack Obama's attempts to broker a nuclear arms agreement between Iran and six major powers (P5+1).[9] [10] The letter warns Iran of the limitations of President Obama's term in office and constitutional powers and notes that anything done without the advice and consent of the Senate could be undone by the next president.[11] [12] A petition on the White House's We The People website requesting that the Obama administration prosecute the 47 senators under the Logan Act accumulated signatures from over 320,200 people.[5]

In April 2018, former Secretary of State John Kerry met with the Iranian Foreign Minister in order to ensure the Iran nuclear deal framework remained more or less intact. Matthew Summers, a spokesman for Kerry, admitted that Kerry "urged Iran to keep its commitments under the Iran nuclear agreement".[13] Stephen Vladeck, law professor at the University of Texas, did not agree that Kerry would be in violation of the act as his intent was to preserve the US policy then in place, rather than seeking to destroy it.[14] Vladeck has also said of the Act: "It raises serious constitutional questions that I think would dissuade even the most zealous prosecutor from trying a case under the Logan Act.”[15]

Former U.S. Attorney for the Southern District of New York (SDNY) Geoffrey Berman stated that he was pressured by the Justice Department to indict Kerry for violating the Logan Act.[16] The SDNY office informed the Department of Justice that it would not prosecute. Berman stated the Justice Department then sent the case to the office of the United States Attorney for the District of Maryland, which also declined to prosecute Kerry.[16]

In August of 2024, former President Donald Trump was reported to have contacted Israeli Prime Minister Benjamin Netanyahu urging him to reject any cease fire deal, fearing a cease fire would help Vice President Kamala Harris in the upcoming election.[17]

Constitutionality

There has been little judicial discussion of the constitutionality of the Logan Act. The U.S. District Court for the Southern District of New York in Waldron v. British Petroleum Co., 231 F. Supp. 72 (S.D.N.Y. 1964), mentioned in passing that the Act was likely unconstitutional due to the vagueness of the terms "defeat" and "measures," but did not rule on the question.[2]

Relationship between FISA and Logan Act

During analysis of the Michael Flynn case, evidence, specifically the notes of Peter Strzok indicate that then-Vice President Joe Biden encouraged the use of the Logan Act to evoke a FISA investigation.

See also

References

Further reading

External links

Notes and References

  1. History of laws prohibiting correspondence with a foreign government and acceptance of a commission : Memorandum on the history and scope of the laws prohibiting correspondence with a foreign government and acceptance of a commission to serve a foreign state in war, being sections five and nine of the federal penal code. Charles Warren. Government Printing Office, 1917.
  2. Web site: Conducting Foreign Relations Without Authority: The Logan Act . February 1, 2006 . Michael V. Seitzinger . . 2007-04-09.
  3. Duda, Jeremy (2017-06-13). "A Foreign Affair". History Today.
  4. News: Nichols. Michelle. Flynn, Kushner targeted several states in failed U.N. lobbying: diplomats. Reuters. December 2, 2017. However, only two Americans have ever been indicted for allegedly violating it – in 1802 and 1852 – and neither was convicted..
  5. Web site: Why The GOP Iran Letter Is Spurring Debate Over An 18th Century Law. March 11, 2015. NPR.org. March 12, 2015.
  6. News: Jacobs . Ben . Were 47 Republican senators who wrote to Iran guilty of a crime? Erm, maybe .... The Guardian . 2015-03-13 . 2017-02-12.
  7. George H. Nash, ed. Freedom Betrayed (2011) p xlix
  8. News: Kucinich . Jackie . Jackie Kucinich . House Republican wants to restrict Pelosi's travel . . 2007-06-21 . 2017-02-12.
  9. Web site: An Open Letterto the Leaders of the Islamic Republic of Iran. March 9, 2015. United States Senate.
  10. News: Baker . Peter . Peter Baker (author) . . G.O.P. Senators' Letter to Iran About Nuclear Deal Angers White House . March 9, 2015 . March 10, 2015.
  11. News: Waldman . Paul . March 9, 2015 . Republicans are beginning to act as though Barack Obama isn't even the president . . March 10, 2015 .
  12. News: Luciano . Michael . March 9, 2015 . 47 Republicans May Have Just Broken the Law By Writing An Outrageous Letter To Iran . The Daily Banter . March 10, 2015 .
  13. Web site: Republican candidate claims Kerry is working on behalf of terrorist organizations. @politifact. en. 2019-06-26.
  14. News: Kerry is quietly seeking to salvage Iran deal he helped craft. Viser. Matt. 2018-05-04. 2017-05-07. en-US. The Boston Globe.
  15. News: Explaining the Logan Act that Dems say Mike Flynn may have violated. February 15, 2017. ABC News.
  16. News: Former U.S. attorney dishes on how he held line against Trump White House. Barbara McQuade. The Washington Post. September 9, 2022.
  17. News: Trump's Latest Scheme to Beat Harris May Have Crossed Legal Lines.