The Logan Act has been in the political lexicon quite a bit as of late. But what exactly is it and why do so many people care about an over 200-year-old statute?
Recently, the Trump/Russian investigation hit a new stride with the news that Michael Flynn was charged and pleaded guilty to having communications with Russia during the presidential campaign.
As many had noticed, Flynn’s plea deal looked to be in the sweetheart variety. While many questioned what information Flynn had given investigators to get such a light sentence, others had started to wonder if Flynn had avoided “real trouble” with the plea deal. This lead to a very popular topic that comes up every time the Trump/Russia investigation is brought into the 24-hour news cycle: we’re talking about the Logan Act.
(THREAD) Republicans are lying about The Logan Act—what it says; why it exists; why it matters—and their lies are perverting discussion of a key element of the Russia probe. This thread explains The Logan Act is and why it matters now more than ever.
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— Seth Abramson (@SethAbramson) December 4, 2017
Many political discussions of late have revolved around whether the Trump/Russia investigation will bring charges of violating the Logan Act to President Donald Trump and his associates. But what is the Logan Act and why do people care so much about it?
What is the Logan Act and Why Has It Come-up in Terms of the Trump/Russia Investigation?
The Logan Act states:
“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.”
Or in layman’s terms, unauthorized citizens can’t go negotiating with foreign nations without the permission of the US government.
So from the definition, it’s easy to see why so many people would connect the Trump/Russia investigation with the Logan Act; after all, most of the allegations made at Donald Trump and his campaign revolve around them working with a foreign government (ie Russia) to undermine US institutions. Whether it be Michael Flynn contacting the Russian government in asking to “not retaliate” after then-President Obama had closed Russian Embassies in the US or Jared Kushner not disclosing that he had donated to pro-Israel causes before pushing the UN to not condemn Israel settlements while Barack Obama was still in office; in both cases they look to violate the Logan Act because both Flynn and Kushner were affecting foreign policy without being part of the executive branch at the time.
It’s also important to note, that it isn’t an idea that is being put out by the media alone, many with a deep understanding of the law have also questioned aloud whether President Trump and his associates had violated the Logan Act. Laurence Tribe, a constitutional law professor at Harvard Law, had recently told the New York Times that, “there is no reason why the Logan Act would not apply to the president-elect since it applies to all private citizens, and the people working on the transition are all working in a private-citizen capacity.”
Yet there are those skeptical of connecting the Logan Act and the Trump/Russia investigation.
Why Some Are Skeptical in Tying the Logan Act to the Trump/Russian Investigation
— National Review (@NRO) December 5, 2017
Over the years, the Logan Act has served a very important purpose: as a political weapon for those supporting the White House.
It’s true, both Democrats and Republicans have used the Logan Act as more of a talking point against the other party. Anytime the opposing party had gone against the current White House regime, supporters of the current administration had always invoked the Logan Act when airing their criticism over foreign policy. The Democrats did it when then-House Speaker John Boehner had personally invited Israeli Prime Minister Benjamin Netanyahu to speak with Congress without heads-up from the Obama administration and the Republicans screamed foul earlier this year when Democratic Representative Tulsi Gabbard had met with Syrian leader Bashar Assad, while not letting the incoming Trump administration know.
Granted, accusing someone of violating the Logan Act may sound extreme, but the severity of the statute and the general vagueness make it a perfect political talking point. Even though many allegations over President Trump’s associates fit relatively well with violating the Logan Act, to many Trump supporters, they might as well be inflated charges from liberals and the mainstream media. Which to be fair, it’s easy to see why. With so many politicians having been the boy who cried Logan Act, if an actual violation were to occur, it would be hard to take seriously.
So Where Does That Leave the Logan Act in All of This?
While there are strong arguments to bring up the Logan Act in terms of the Trump/Russian investigation, however, we shouldn’t overlook a vital point in all of this; that in the over 200-year-old law, no one has ever been convicted of violating the Logan Act! The last time someone even tried to prosecute anyone under the Logan Act was in 1803(!!) over a farmer writing an anonymous column in a Kentucky newspaper regarding the “Western America” being allied with the French. So yeah… not much judicial precedence there.
As any court reporter or lawyer would tell you, the majority of modern law is built on past court decisions. So in the case of the Logan Act, the fact that it has never been successfully tried in court makes it risky to prosecute anyone in the Trump administration for violating it. In other words, if officials wanted to prosecute President Trump and his associates over their alleged ties with the Russian government, they’re more likely to go after other charges like obstruction of justice or lying to federal authorities, because there is precedence over those decisions.
Generally speaking, the Logan Act always looks to be in the context of a theoretical discussion when talking about the Trump/Russia investigation. Or as a friend of the site, who happens to also be a law school professor, told us casually:
“My personal opinion on the whole Logan Act thing is this; federal investigators, for the most part, keep their investigations close to the vest. In fact, the things that we think we know, are just hypotheses – some educated, others not – about the situation based on various observations, none of it is really tangible information at this point. I think, in the media, that’s why the Logan Act has gotten real traction over the last few months. While the Logan Act, by definition, sounds plausible based on what we know about the Trump Admin and Russia investigation, but in reality, no one’s ever been tried for violating it, which is making a lot of people in the media nervous about getting behind such a theory. Their interpretation of the Logan Act in this case is just another hypothesis by the media to understanding the investigation that isn’t giving them much information.”
It’s a salient point. What do we really know about Robert Mueller’s investigation anyway?
Most of the reporting that has been done surrounding the investigation has been based on past investigations and assumptions made by the media. Take the charges brought on to Michael Flynn by investigators thus far, many of us assume that Flynn must have given investigators important information in-turn for a lighter sentence. But as Preet Bharara – a former US attorney – contemplates the deal on his podcast, he concludes that just because Flynn received a lighter sentence doesn’t mean a sweetheart deal was put in place. While many of us are making the assumption that Flynn knew something incriminating and used that information to get a lighter sentence, it’s just as equally plausible that Mueller’s investigation hasn’t been able to produce anything of note, so all they could charge him with was lying to the FBI over the Russian meeting.
Now that isn’t to say there isn’t any value to educated assumptions when talking about the Trump/Russia investigation. For the most part, journalists and legal experts have been relatively successful in sussing out information from Mueller’s investigation and have given a real service in explaining the severity of the charges to the public. Yet, our law school professor friend said it best when we asked him, “whether the media was taking a shot in the dark when it came to framing the Trump/Russia investigation in terms of the Logan Act?”
They answered it with another question.
“Isn’t that always the case?”
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