Two University of Chicago law professors say a terrible, politically motivated federal law on the books for most of American history is a threat to Mike Flynn and President Donald Trump's administration.
Eric Posner and Daniel Hemel today at The New York Times raise the specter of the Logan Act, one of the dumber federal laws written during an era where America was not as quick as it is today to protect the rights of citizens to speak freely.
The Logan Act makes it a federal crime for a private American citizen to engage in any communication or correspondence with a foreign government that intervenes in a dispute with the United States and that government in order to "defeat" any measures by the U.S.
Flynn, as part of Trump's transition team, stands accused of lying to the FBI about contacts with the Russian government and conversations intended to influence Russia's response to U.S. sanctions and its vote on a United Nations resolution condemning Israeli settlements. Flynn pleaded guilty to making false statements Friday.
The nature of Flynn's communications with a Russian diplomat have been known publicly for months now. Whether his behavior violated the Logan Act has been a point of discussion for most of the year, and according to Byron York at the Washington Examiner, partly a motivation for the investigation. Here's how Posner and Hemel describe the Logan Act:
The statute, which has been on the books since the early days of the republic, reflects an important principle. The president is — as the Supreme Court has said time and again — "the sole organ of the nation in its external relations." If private citizens could hold themselves out as representatives of the United States and work at cross-purposes with the president's own diplomatic objectives, the president's ability to conduct foreign relations would be severely hampered.
How neutral Posner and Hemel's description sounds! It's about protecting America's interests by trying to stop the president's role from being subverted by competing demands by other citizens.
Their description is pure bullshit. The Logan Act is rooted in the private efforts of Quaker politician George Logan to negotiate peace between America and France during a little-remembered and undeclared naval war between 1798 and 1800. Logan reportedly did not claim to represent the United States or President John Adams. And it's not clear how much influence, if any, he had on the peace process.
But he was a Jeffersonian Republican and a political opponent of the Federalists. His actions with France embarrassed the Federalists, who controlled Congress at the time. The Logan Act, then, was passed to punish political adversaries for attempting to get involved in international politics with agendas other than the president's.
The Logan Act is not a law about preventing fraud, or treason, or subversion as Posner and Hemel suggest. It's a law for the expressed purpose of punishing political speech. Whenever it has been invoked it has been for exactly that reason. Logan Act accusations have always had strong stench of political opportunism behind them and very frequently (but not always) in response to peace-seeking activism. President Ronald Reagan invoked it against Jesse Jackson for traveling to Cuba and Nicaragua. GOP Rep. Steve King later tried to invoke it against Rep. Nancy Pelosi for communicating with the Syrian government. And it was invoked again toward the end of President Barack Obama's administration as Republican senators signed onto an open letter warning Iran that their deal with Obama could be undone by the next president.
Even in Flynn's case, Flynn's communications with Russia were about discouraging them from overreacting to sanctions from the United States and trying to block a resolution that could have escalated tensions with Israel. Mind you, Flynn is no peacemonger, and there may well have been some extremely self-serving reasons for this lobbying.
It's utterly absurd—comical even—to suggest that anybody in Trump's transition team should be charged for speech and negotiations with Russia that run counter to what Obama's administration had planned just weeks before Trump would be sworn in as president. If Trump or people in Trump's administration have used these relationships with other countries to engage in some sort of corrupt profiteering, that's what they should be charged with.
Proving corruption is a lot harder than proving Logan Act violations (or lying to the FBI), and that may well be what's motivating these op-eds. People want to get rid of Trump. Corruption investigations take a long time. Catching Trump and his staff on the Logan Act would be much faster.
Nobody, however, should be charged with violations of a terrible, unconstitutional law. Only two people have ever been indicted for violating it and nobody has ever been prosecuted.
It's disappointing (but not surprising) that Posner and Hemel ignore the origins and enforcement of the law. Had they acknowledged the law's history of politicization, they would have ended up subverting their own arguments.