The Logan Act. The Logan Act?

At USA Today Bush Administration functionary James Robbins calls for, presumably, the Democrats and anti-Trumpers and, indeed, the entire country to move on from what he deems the “Russia collusion fantasy”:

On Friday, President Trump’s former national security adviser, Michael Flynn, pleaded guilty to lying to federal investigators about a perfectly legal conversation he had during the presidential transition with then-Russian Ambassador Sergey Kislyak.

Flynn should not have lied, and why he chose to remains a mystery, but the substance of the single-count indictment against Flynn shows that special counsel Robert Mueller’s investigation has strayed far from its original purpose.

We have come down quite a way from the hyperventilation about Russia “hacking the election” a year ago. What happened to Democratic Sen. Mark Warner’s claim, later promoted by Hillary Clinton, that there were 1,000 Russian agents planting anti-Hillary fake news stories in key swing states? Or that Russians had delivered Wisconsin to Trump? All the conspiracy theorists have so far are a few Facebook ads that can’t credibly be shown to have changed even one vote.

This morning the New York Times features on op-ed calling for prosecution of members of the Trump transition team under the Logan Act and a piece at the Washington Examiner documents how this has been a talking point for the Democratic leadership since the Republican convention:

The documents outlining Michael Flynn’s guilty plea in the Trump-Russia investigation do not allege collusion or conspiracy between the Trump campaign and Russia to influence the 2016 election. They do, however, suggest that the Obama Justice Department was intensely interested in Flynn’s discussions with Russian ambassador Sergey Kislyak about policy issues — sanctions against Russia, a United Nations resolution on Israel — during the presidential transition, when Barack Obama was still in the White House and Donald Trump was preparing to take office.

At the time, top Justice officials suspected Flynn of violating the Logan Act, the 218-year-old law under which no one has ever been prosecuted, that prohibits private citizens from acting on behalf of the United States in disputes with foreign governments. Starting in the summer of 2016 and intensifying in the transition period, the Logan Act, while mostly unknown to the general public, became a hot topic of conversation among some Democrats. A number of lawmakers, former officials, and commentators called on the Obama administration to investigate the Trump team for a possible Logan Act violations — and to do it while Democrats still controlled the executive branch.

At the same time, inside the Obama Justice Department, it appears the Logan Act became a paramount concern among some key officials in the critical weeks of December 2016 and January 2017. Former Deputy Attorney General Sally Yates has told Congress that the Logan Act was the first reason she intervened in the Flynn case — the reason FBI agents were sent to the White House to interview Flynn in the Trump administration’s early days. It was that interview, held on Jan. 24, 2017, that ultimately led to Flynn’s guilty plea.

In short, there’s no doubt the Logan Act, a law dismissed as a joke or an archaic irrelevancy or simply unconstitutional by many legal experts, played a central role in the Obama administration’s aggressive and enormously consequential investigation of its successor.

Democrats began accusing Trump of Logan Act violations in the summer of 2016, immediately after the Republican convention, when Trump sarcastically invited Russia to produce the 30,000-plus emails that Hillary Clinton deleted rather than turn over to investigators. “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing,” Trump said during a July 27 news conference. “I think that you will probably be rewarded mightily by our press — let’s see if that happens, that’ll be nice.”

The next day, Tom Vilsack, Obama’s secretary of agriculture and on Hillary Clinton’s vice presidential short list, accused Trump of violating the Logan Act. “That’s a no-no, you can’t do that,” Vilsack said. “That’s not legal.”

Following Vilsack was Democratic Sen. Claire McCaskill. “I believe it violates the Logan Act,” McCaskill said, “and I think he should be investigated for that.”

House Minority Leader Nancy Pelosi called Trump’s statement “a treasonous act.” Senate Minority Leader Harry Reid said it “borders on treason.”

Harvard Law professor Laurence Tribe weighed in the next day. “The Logan Act, which was enacted back in 1799 and fundamentally says that you cannot engage in negotiations with a foreign power,” Tribe told MSNBC’s Lawrence O’Donnell. “It hasn’t been used, but that’s because we haven’t had very many Donald Trumps, thank God, in our history. I think he’s violated that act.”

On Aug. 3, two more Democratic senators, Chris Coons and Sheldon Whitehouse, called for a hearing on Trump and the Logan Act. “Mr. Trump’s comments implicate U.S. criminal laws prohibiting engagement with foreign governments that threaten the country’s interests, including the Logan Act and the Espionage Act,” they wrote.

On Aug. 9, Democratic Reps. Patrick Murphy, Andre Carson, and Eric Swalwell called for a House hearing to examine whether Trump violated the Logan Act, among other statutes.

In September, Rep. John Conyers, the top Democrat on the House Judiciary Committee, asked the FBI’s then-director, James Comey, whether the bureau was investigating Trump for a possible violation of the Logan Act. Comey declined to answer.

At that same hearing, another Democrat, Rep. Ted Deutch, asked Comey about reports that sometime Trump foreign policy advisory board member Carter Page traveled to Moscow in July 2016. “If an American citizen, Director Comey, conducted meetings with a Russian individual who has been sanctioned by the United States about potential weakening of U.S. sanctions policy, in violation of the Logan Act, would the FBI investigate?” Deutch asked.

“I don’t think it’s appropriate to answer that,” Comey responded.

There wasn’t much public discussion of the Logan Act in October and November, as the campaign reached its final weeks and the political world dealt with the shock of Trump’s victory. The subject re-emerged in December as Democrats, stunned and angry, watched Trump prepare for the presidency — and prepare to undo many of Obama’s policies.

On Dec. 8, Democratic Rep. Jared Huffman introduced the “One President at a Time Act of 2016.” The bill would have amended the Logan Act to specify that a president-elect, or anyone acting on a president-elect’s behalf, was specifically subject to its restrictions. The bill “just makes it explicitly clear that the president-elect is just like every other private citizen during the transition period,” Huffmann told MSNBC’s O’Donnell. “They can’t go around purporting to conduct U.S. foreign policy.”

On Dec. 20, Reps. Conyers and Sheila Jackson Lee asked the Justice Department to investigate Trump for a possible violation of the Logan Act.

On Dec. 22, former Obama State Department official Wendy Sherman told MSNBC that Trump’s actions on a UN resolution concerning Israeli settlements implicated the Logan Act. “People have said to me today it crosses the line of the Logan Act,” Sherman said. “We have one president at a time. And Donald Trump is really playing with fire.”

On the day Sherman appeared, Flynn spoke on the phone with Kislyak about that pending U.N. resolution concerning Israeli settlements. “Flynn informed the Russian ambassador about the incoming administration’s opposition to the resolution, and requested that Russia vote against or delay the resolution,” said the “Statement of the Offense,” the Mueller document released with Flynn’s guilty plea. The next day, Dec. 23, the two men spoke again and Kislyak informed Flynn that Russia would not do as the Trump team requested.

A few days later, on Dec. 29, Flynn and Kislyak spoke again, according to the Mueller statement. This time the subject was the new sanctions Obama imposed on Russia in retaliation for election meddling. Flynn “requested that Russia not escalate the situation and only respond to the U.S. sanctions in a reciprocal manner.”

Two days later, on Dec. 31, Kislyak called Flynn to say that “Russia had chosen not to retaliate in response to Flynn’s request.”

U.S. intelligence agencies recorded the calls; Kislyak was the subject of American monitoring, so a wiretap on him on these occasions picked up Flynn, too. It appears Obama administration officials immediately saw the Flynn-Kislyak conversations as a possible Logan Act violation. They knew, of course, that given the history of the law, a Logan Act prosecution was a virtual impossibility. They knew that many foreign policy experts would see such contacts between an incoming administration and a foreign power as an acceptable and normal course of business in a presidential transition. Nevertheless, approaching the Flynn-Kislyak talks in the context of a criminal violation — the Logan Act — gave the Obama team a pretense to target Flynn, and thus the new Trump administration.

I’m on record as saying that, if members of the Trump transition team are prosecuted under the Logan Act, it would mark the end of the republic. Over the years I’ve probably mentioned the Logan Act as frequently as anybody. What is it and what would be the implications of a prosecution of Trump transition team members under the Logan Act?

The Logan Act was enacted in 1799 as a response to George Logan’s entering into negotations with France. Logan was a pacifist state legislator from Pennsylvania. Here’s the text of the act:

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.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

In its 218 year history no one has ever been convicted of breaking the Logan Act and there has been only two indictments under the act, one in 1803, of a Kentucky farmer who advocated federation of Kentucky with France, and the other in 1852 of an American merchant who negotiated authorization with Mexico to build a railway in Mexico. It is widely considered both obsolete and an unconstitutional violation of the freedom of speech.

Since then lots of accusations have been flung around but none are really substantive; they’re invariably politically motivated.

As to why I think an actual prosecution under the Logan Act would be so divisive, consider the list of Americans who’ve ever had direct contacts with agencies or representatives of foreign countries when they were not official representatives of the U. S. government. The list includes every living former president, every president-elect, and many other prominent Americans including:

Jimmy Carter
George H. W. Bush
Bill Clinton
George W. Bush
Barack Obama
Hillary Clinton
Rev. Jesse Jackson
Al Gore

Most CEOs of large companies have violated the Logan Act; indeed, any American tourist who’s ever gone into a post office in another country may have violated the act.

A prosecution under the Logan Act would be a purely political act and a pretext for embarrassing and/or removing the president; it would be barratry and would invite if not demand reprisals. No presidential transition team that ever accepted a congratulatory phone call from overseas would ever be safe from prosecution which is to say none of them.

14 comments… add one
  • Modulo Myself

    I don’t know what the whole story is, but if it ends up that there were endless contacts between Trump’s team and the Russians who were doing whatever they were doing to undermine the election in Trump’s favor all with Trump knowing full well what Russia was doing, this goes way beyond normal campaign politics. A month ago it was Hillary Clinton who was behind all of this. Now it’s every campaign actively embraces a foreign government that is trying to sway an election and so it’s wrong to single out Trump. It’s totally preposterous.

  • CuriousOnlooker

    I think charges of obstruction of justice occur before charges of Logan Act.

  • My point is that prosecutors need more than the Logan Act. Indeed, if the only thing they can come up with is the Logan Act, they shouldn’t prosecute.

  • Modulo Myself

    Capone was nailed for income tax evasion, but somehow we have let slide the numerous legitimate businessmen who park their money in the Caymans. Similar principles here–Trump is a mobbed-up front, and if he’s goes down it’s because of that.

  • There’s an important difference: people are convicted of income tax evasion every day. No one has ever been convicted of violating the Logan Act.

  • Modulo Myself

    So what? Name another mobbed-up demented idiot neck deep in a foreign government’s machinations who has been President. The important difference is Trump and the current Republican Party, rather than the possible application of the Logan Act.

    To be honest, I don’t think he should be prosecuted. This investigation will probably (unless it’s shut down) end up portraying the campaign as completely connected with numerous attempts by Russia to ‘influence’ this election. But the campaign was also filled crazy idiots. Flynn was thinking about kidnapping somebody in this country for 15 million and then transporting him to Turkey. And the base is as crazy and has the same lack of judgement. They’re all this far gone and so removing him is going to make it worse.

    The honest move is to portray Trump as a symptom of a collapsing system of crap money, nauseating jingoism, insane Jesus freaks, and utterly pathetic taste. He’s got to be portrayed as the rock bottom of many years of neoliberal decline.

  • Modulo Myself

    Also, that list of yours omits Nixon, who directly subverted the 1968 peace talks. Johnson knew this at the time but partially balked at revealing this because it would show the extent of CIA/FBI snooping into the lives of Americans. Nixon went down because he was even worse than Johnson. But the American political class blinked after Watergate and instead began to focus on building up trust in America and corporations and blah blah blah. They should not have. Trump is the end result of that failure.

  • Nixon isn’t a living president. My list was limited to people who are still alive.

  • Guarneri

    We are criminalizing political disagreement. Period.

    Someone here noted last week they thought Obama was a good guy. Making Flynn a premeditated pawn in an entrapment – destroying him – over a political spat is not what good guys do.

  • PD Shaw

    When I was feeling feisty ten years ago or so, I would point out that the Alien and Sedition Acts (1798) could be used to intern Muslim Americans until we get this global war on terror in hand. But nobody thinks those laws can be enforced these days, right?

  • PD Shaw

    There was once an FBI director who recommended not bringing novel charges against a Presidential candidate for fear of interfering in the democratic process. I wonder what happened to him?

  • TastyBits

    Oh shit, it looks like the ruling on President Trump’s travel ban is going to make a very unmerry Christmas for some.

    Burn, baby, burn.

  • CuriousOnlooker

    You know how this all ends? Trump is going to give a blanket pardon on Logan Act violations to everyone mentioned on Dave’s list and who served in those administrations, as well as himself and his administration. I can imagine the uproar…. Just joking.

    Given the information about today about the FBI agent removed from Mueller’s investigation was the one that interviewed Flynn and the one that led Comey to not pursue Clinton; you have to wonder how much more can leak out before a 2nd special counsel investigation on the origins of Mueller’s investigation starts…..

    I wonder what we should do if eventually we find out Obama and the previous administration seriously abused power to influence the 2016 campaign or entrap the current administration and also the Trump campaign colluded with the Russians.

  • Andy

    The Logan Act is, IMO, obviously unconstitutional. Any conviction would be challenged on those grounds.

    And yes, the names of violators is endless. After all, the act doesn’t specify Russia.

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