The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I've been hearing some buzz about whether House Speaker John A. Boehner, when he invited Israeli Prime Minister Benjamin Netanyahu to address Congress, and the 47 Republican senators who wrote a letter to Iranian leaders violated the Logan Act. I'm not an expert on the subject, and don't have an expert opinion. But I thought I'd canvass some opinions from scholars who have focused on this question (which is quite separate, of course, from the question whether the speaker's and senators' actions were wise).
1. First, what's the Logan Act, you ask? Unusually for statutes (as opposed to judicially crafted doctrines, such as the Miranda rule), the Logan Act is named after the supposed bad guy: Dr. George Logan, a state legislator who traveled to France in 1798 to try to negotiate an end to the France-America Quasi-War. Congress didn't go for that, and enacted the statute that now appears at 18 U.S.C. § 953:
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.
(As it happens, a couple of years later Logan was appointed and then elected to the Senate, and apparently tried and failed to get the Logan Act repealed.)
2. So what does the Logan Act mean today, and is it even constitutional, given modern understandings of the First Amendment? A few reactions:
[1.] [Under the Act,] the citizen must act "without authority of the United States." Although most assume that means without authority of the Executive Branch, the Logan Act itself does not specify what this term means, and the State Department told Congress in 1975 that "Nothing in section 953 … would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution." … Combined with the rule of lenity and the constitutional concerns identified below, it seems likely that … courts would interpret this provision to not apply to such official communications from Congress.
[2.] It seems quite likely, as one district court suggested in passing in 1964, that the terms of the statute are both unconstitutionally vague and in any event unlikely to survive the far stricter standards contemporary courts place on such content-based restrictions on speech….
[3.] [T]he Logan Act has never been successfully used (indeed, the last indictment under the Act was in … 1803). Although most assume this is just a practical obstacle to a contemporary prosecution, it's worth reminding folks about "desuetude"—the legal doctrine pursuant to which statutes (especially criminal ones) may lapse if they are never enforced (interested readers should check out a fantastic 2006 student note on the subject in the Harvard Law Review). If ever there was a case in which desuetude could be a successful defense to a federal criminal prosecution, I have to think that this would be it.
b. Now let me turn to Prof. Michael Dorf (Cornell), though speaking not about this controversy but about the similar one in 2007, when then-Speaker Nancy Pelosi went to Syria to negotiate with Assad:
I'll just note four issues:
1) There is zero chance that Pelosi will actually be prosecuted.
2) In the hypothetical world in which she were prosecuted, she could claim:
a) That as Speaker, she had "authority of the United States." (This strikes me as a weak argument because in matters of diplomatic relations, the executive branch is the relevant authority.)
b) Her intent was to influence Syria's conduct with respect to Israel, not the United States. (This strikes me as a good argument, because it appears to be true. Her trip was pre-blessed by Israeli PM Olmert. The Administration might claim that Pelosi's trip nonetheless was aimed to "defeat the measures of the United States," namely the measures aimed at isolating Syria, but could Pelosi be shown to have had the "intent" to do so? Perhaps. Her aim was in part to engage Syria, as recommended by the Hamilton/Baker report, which does sound like the opposite of isolating Syria.)
c) She was on a fact-finding mission. (Pelosi has said as much, and members of Congress are, as I noted in my last entry on this subject, entitled to go on fact-finding missions without the President's blessing. But if she was on a fact-finding mission that also included violations of the Logan Act, she would still be guilty.)
3) As the Speaker and others have noted, Republican members of Congress have also been to Syria, including this past week, without incurring the wrath of the Administration. One could, in theory, interpret the Administration's silence with respect to these other freelancers as amounting to a delegation of "authority" to them to conduct foreign policy, but that would be a strained reading of the statute in the interest of sustaining a selective prosecution. If it undermines official efforts of the U.S. to isolate Syria for a Democratic member of Congress to meet with Bashar Assad, then a meeting with a Repubican member of Congress has the same effect. There may be circumstances in which a President could legitimately authorize a member of his own party in Congress to conduct diplomacy on his behalf while withholding such authority from other members of Congress, but if that is to justify selective prosecution under the Logan Act, one would think that the authorization would have to come before the diplomacy.
4) Because no one has ever been convicted of violating the Logan Act, and no indictments have even issued in the last 200 years, any inferences about its meaning are necessarily speculative. See point 1 above.
c. Finally, Prof. Marty Lederman (Georgetown):
[S]uch communications by legislators with foreign officials—including communications with our adversaries, and sometimes expressing views contrary to those of the Executive branch—are nothing new. It's been going on in full force since at least the beginning of the 20th Century. See Detlev Vagts's very interesting 1966 account of the history of the Logan Act in 60 AMJIL 268, 275f. for some prominent examples. If Pelosi is acting unlawfully or inappropriately, she has plenty of company….
The prohibition of [the Logan Act], read literally, has been constantly violated since its enactment, as Vagts and others recount. (Indeed, it would appear even to prohibit, e.g., attorneys in the U.S. from representing foreign nations in U.S. litigation.) Yet only one indictment was ever brought—in 1802, when a Kentucky farmer wrote a newspaper article advocating that the western part of the U.S. form a new nation allied to France, and a zealous United States attorney (John Marshall's brother-in-law!) procured an indictment. Not surprisingly, the case went nowhere. And that's the history of the Logan Act. As Lou Fisher has written, "if ever there is a dead letter in the law, it is the Logan Act and the stilted thinking that inspired it."
Does the Logan Act apply to members of Congress? Vagts says yes, on a literal reading, 60 AMJIL at 290, although the "without authority of the United States" condition certainly would make it an interesting question, in the unlikely event the statute were ever invoked.
Does the Logan Act raise First Amendment questions as applied to private parties? Vagts again suggests it does. I'm not so sure—at least as to one-on-one private negotiations overseas. But again—it doesn't matter, because the statute has (appropriately) lapsed into desuetude.
What about the constitutional question of the permissibility of a member of the Congress engaging in diplomatic discussions with a foreign nation? Frankly, it troubles me—or it would do so if Pelosi were purporting to speak on behalf of the United States.
Congress may, by statute, dictate the foreign policy of the United States. (By the way, that's a fine excuse to note the most important constitutional development of the week: As great and significant as the Court's analysis on Article III standing was in Monday's landmark Massachusetts v. EPA decision, the sentence in Stevens's opinion that might have the most important long-term impact was this one: "[W]hile the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws.")
Nevertheless, perhaps it's the OLC lawyer in me, but I think there's much to be said for the notion that insofar as actual U.S. communications with the outside world are concerned, the President is to be (in Marshall's famous words) the "sole organ" by which U.S. policy is conveyed (consistent, again, with statutory direction). More broadly, as far as official U.S. execution of the law is concerned, Congress and its members and/or agents can have no role, once the process of bicameralism and presentment is completed. Or so say Chadha, Bowhser, WMATA, Buckley, etc., anyway.
For me, then, it would be important to know in what capacity Pelosi was purporting to speak. If she were "only" conveying the views of the opposition party—or of a prominent private person—and not purporting to speak for the U.S., then I don't think there'd be much of a constitutional problem, however imprudent or inadvisable her actions might arguably have been. Again, I assume that State Department officials were with her, and that to the extent her views were inconsistent with the official U.S. views, that would have been made known to Syria in no uncertain terms. If that's the case, I think the problems, if any, are not constitutional. But if Pelosi—or any of the other numerous congressional officials who have long engaged in diplomacy with foreign nations—purported to be speaking on behalf of the Nation, it would raise constitutional questions.
In any event, I thought some of our readers would find these items interesting.