The Logan Act is back in the news, and its invocation is as breathtakingly stupid as it has always been.
This time, President Donald Trump wants to use it against John Kerry, who has been meeting with Iranian officials to apparently attempt to somehow salvage vestiges of the nuclear agreement between them and the United States that Trump has backed out of.
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.
The law has been around since 1799, yet nobody has ever been prosecuted for violating it (two people have been indicted but never prosecuted). Attempting to enforce the law would demonstrate just how thoroughly it violates the free speech rights of Americans.
Trump has complained about Kerry's behavior on Twitter and to the press, saying Kerry is violating the Logan Act. On Monday, Sen. Marco Rubio (R–Fla.) sent a letter to Attorney General William Barr asking him to investigate whether Kerry's behavior is indeed in violation.
Trump raising the specter of the Logan Act follows a very clear trend that goes all the way back to the law's roots. The person or political party in control of American foreign policy wants to use it to punish a political opponent for openly speaking and attempting to influence foreign governments in ways they don't like. In this case, the Trump administration is itching for war with Iran. Kerry is trying to prevent it.
This attempt to criminalize speech in the Logan Act was designed for the very purpose of punishing political opponents. In fact, the law was written back in 1799 in a situation much like this one, where a private American citizen, Philadelphia Quaker George Logan, attempted to negotiate with France to stop an undeclared sea war between the two countries. Logan's actions pissed off the Federalist Party, and they pushed the bill through Congress.
The law's roots are entirely political and are not based on any actual threat that speech between a citizen and foreign government would somehow undermine America's foreign policies. The history of the Logan Act has entirely revolved around members of one political party trying to use it against another.
In fact, Trump's presidential campaign has been on the other end of this nonsense as well. Back in 2017, experts in the Logan Act suggested that Mike Flynn, part of Trump's post-election transition team, may have violated the law by discussing with a Russian diplomat potential responses to U.S. sanctions and a United Nations vote condemning Israeli settlements.
The invocation of the law was stupid then—particularly since Trump was preparing to take office and take control over the country's foreign policy—and it's just as stupid now. As I noted at the time, bringing up the Logan Act was clearly a way to try to get at Trump and those connected to him because proving corruption is hard and people were looking to grab anything they could to try to get him out of office. It didn't work. Using it against Kerry won't work, either.
I suspect nothing will come of this nonsense and it will get dropped. Part of me hopes the Justice Department will attempt to charge Kerry with violations of the Logan Act, if only so that the courts will toss the law out as unconstitutional. Instead, though, it will just sit around like this and periodically be used to insist to the public that political opponents are committing crimes by talking to and negotiating with foreign governments.