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  1. Roger Rabbit #
    1

    When did it get enforced? Never. The Logan Act was a product of John Adams-era politics. No one has been indicted under it since 1803, and no one has ever been convicted under it. It’s a paper tiger, and realistically, no federal prosecutor will go after a Speaker of the House. (A cynic could argue that when Congress passed the Logan Act, they intended it to apply to us, not themselves.) In any case, it’s narrowly written and has a narrow application. Basically, only the executive branch (i.e. the president and his representatives) can negotiate agreements between the U.S. government and foreign governments. So, it has separation of powers implications. But congressmen can meet and have discussions with foreign leaders; that isn’t negotiation. A 1975 State Department opinion said nothing in the Logan Act prohibits “members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.” Late in the Civil War, President Lincoln rebuked General Sherman for negotiating a political agreement with Confederate General Johnston, an agreement that Lincoln repudiated and wasn’t implemented. Lincoln didn’t, so far as I know, expressly invoke the Logan Act but its principle applied there.

  2. Roger Rabbit #
    2

    An interesting question is what would happen if, say, Boehner consulted with Canadian officials to work out details of Keystone XL legislation to bypass the White House and State Department, Congress overrode a veto, and Obama retaliated by ordering Holder to prosecute Boehner for violating the Logan Act. Superficially, it might look like he did, but I think the Supreme Court would say Boehner’s discussions with the Canadians were incidental to Congress’ exercise of its legislative powers, and no crime was committed. The Logan Act more likely would be employed as a legal tool to argue that the legislation was unconstitutional because it violated separation of powers, although the administration wouldn’t need the Logan Act to make that argument.

  3. theaveeditor #
    3

    I take a longer view. Despite the pride Americans have in our God given founding documents, we too have an unwritten constitution.

    A lot of what our government does is under this unwritten law .. for example the party structure of Congress exists despite the lack of intent of the writers of the Constitution.

    The same is true of the SOTUS. Marsall, not Madison, creates today’s Court and ..for better or worse it is an essential part of our government.

    The same is true of our division of powers., We do not have a PM .. we have a President. Without a European style parliament, who would negotiate with other countries?

  4. 4

    As Roger Rabbit says, Boehner’s actions don’t constitute an attempt at negotiation; therefore, they don’t fall under the provisions of the Logan Act. Even if they did, it’s doubtful that the President would enforce it. Not over something like this . . .

    You know, at first, I thought Boehner’s invitation to Bibi was just a misstep or at worst a petty jab at Obama. Now I see that there was more to it than that.

    If I were the President, I would send a rebuke to Boehner’s office, along with a warning that if he tries it again, whichever guest he takes it upon himself to invite will be promptly and publicly uninvited. The President has options for dealing with these insults and breaches of protocol, and I think he should avail himself of them.

  5. theaveeditor #
    6

    Roger, as he always does, view the law in terms of what can be done in our system. What I d know, form my own former service in the military and work for Uncle, is that government employees (perhaps as opposed to Congressmen) take the Logan act literally.
    Will Mr. Boehner be charged? No. Should he be charged? Well, I suppose that is a technical question. Can Netnanyahu realistically claim he is not trying to influence US policies? Assuming that is absurd, then can Boehner realistically claim he is not negotiating? What si he going to do when Bibi asks home whether Congress will agree to suspend the sanctions in opposition to the President’s wishes?
    Worse, look ahead. Imagine that the President of China is trying to negotiate a trade treaty? Who represents the US?



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