Speak loudly and carry a small stick: The Logan Act and American foreign policy

By rights, the Logan Act should never have never made it onto the Internet chat circuit. Approved in 1799 by a sharply polarized Congress, the Act was seen, even at the time, as nothing more than a gesture to put an upstart state legislator (Dr. George Logan) in his place for schmoozing the French. Dr. Logan himself was never indicted under it, and only one person ever was, in 1803. That indictment did not result in a trial. With a record like that, you’d think Logan would have long since withered away, but not only has it not withered, it has grown wings. Should Candidate Reagan be tried under Logan for parlaying with the Iranians behind President Carter’s back?  Should Jesse Jackson be indicted for traveling to Nicaragua and kibitzing with the Sandinistas? (Now it’s back to Iran with the Republicans again . . .)

Invoking the Logan Act against one’s enemies is one step short of accusing them of treason. Logan would seem to be a much lower bar to hurdle though, since, unlike treason, Logan doesn’t require that the accused be proven to have intentionally harmed his country. Still, the text of the Act, and the dearth of indictments under it, reminds one that Logan is an essentially political instrument, and not a practical one:

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.


Logan has been criticized as too broad, and we can see why. What’s “carrying on correspondence” for example? Would that apply to a private citizen writing a letter to a foreign head of state, or would there have to be an exchange of letters?  And what constitutes a “dispute or controversy” between a foreign power and the U.S.?  What if our government is trying to bring some foreign dictator to heel, and Citizen Preston chimes in with a letter or e-mail of his own? It’s not as far-fetched as it sounds. In my college days I belonged to Amnesty International, and in that capacity I wrote letters to dictators, urging them to stop torturing and killing people. Some of these governments had been given the State Department’s “We don’t torture” seal of approval (this was the Reagan Era) and my letters were thus in contradiction to official American policy. Wouldn’t I have been guilty under Logan? After all, I was, in a sense, trying to “influence the conduct” of a foreign government in a way that would “defeat the measures of the United States.”

But no.  As I say, Logan was never more than a symbolic act. As such, it is meant for the whales of American politics, not little minnows like me. And realistically, what chance did a naive college kid have to influence foreign governments anyway?

Besides the ones I’ve mentioned, some of the more recent candidates for a Logan include:

Joseph Kennedy

George McGovern

Teddy Kennedy

Jim Wright

John Kerry

Jim McDermott

Nancy Pelosi

. . . and a bevy of Republican Senators who just sent a letter to the Iranian government warning them not to assume any nuclear treaties they make with President Obama will hold up in the Senate.

* * * *

My friend Stephen Schwartz, who asked me to write on this topic, suggested that I frame my discussion in terms of separation of powers and a possible Constitutional crisis, but I don’t see how I rightly can. While the Republican Senators do appear to be usurping the President’s authority as America’s negotiator in chief, I’m not sure how the Logan Act can directly remedy that. The Act sanctions only those who act “without the authority of the United States” as opposed to those who act without the authority of the president. For better or worse, Senators do embody the authority of the United States in the sense that it is their job to approve or reject foreign treaties, a fact that the 47 Republicans duly noted in their letter to the Iranians.

Beyond this, it is unlikely that President Obama would take the risk of initiating what would be seen as a political trial. But even if indictments were issued and the matter did come to court, what purpose would be served, other than to make the U.S. government look even MORE divided in the eyes of the world, to say nothing of the Iranians? Such a trial would offer Mr. Obama’s enemies another forum in which to insult and undermine the President, and that is yet another headache he does not need.

Oddly enough, the Logan Act, “quaint and outdated” though it is, still serves a function, if only by letting the President’s supporters vent some righteous steam, and by reminding the rest of us that there really is a separation of powers, and that it is the president’s prerogative, not the Senate’s, to negotiate on behalf of the country.

~ Fin ~

David Preston is a guest writer for The Ave. He also writes on local Seattle politics for his own blog, The Blog Quixotic.


0 Comments Add Yours ↓

  1. theaveeditor #

    I take a more optimistic point of view.
    The Repugnat wing of the Republican party has taken SEVERAL initiatives that undermine not just the Presidency but our Constitution and form of government.
    These initiatives include havine Bush’s first election settled by the SCOTUS, the intrusive use of subpoenas not for investigation to stall government, failure to appoint cabinet and judicial officials, threats to defund the government, redistricting so that now a minority of Americans consistently defeats majorities in elections, etc.

    At some point this destructive activity can destroy our system. We have been there before .. the Civil War. The Know Nothing Party may have been the real cause of that war and “they” are here again.

    My view is that indictment under the Logan Act, if managed well, would force some sort of order onto a system that is nearing a breaking point.

  2. LucasFoxx #

    I suspect the President will take the high road on this, and let it pass with the with the Iranians’ amusing response. Kind of like John Kerry after the 2004 election: “it would be harmful to the country to pursue this.” It’s just one more stupid thing he has to deal with.

  3. theaveeditor #

    If he does that I hope he makes a string speach calling out the Repugnants.

  4. 4

    President Obama seems to be engaged in a kind of proxy war with the Republicans now. He doesn’t address them directly, but he does allow/encourage his supporters to do so.

    The Iran letter will be a serious blow to the Republican candidates in 2016. Three of them (Bush, Walker, and someone else) have already endorsed the letter. If any one of them makes it through the primary, he’s gonna have some ‘splainin’ to do to the American people.