MENU

Reason.com

Free Minds & Free Markets

The Logan Act Is Awful, and No, It’s Not Going to Take Down Trump’s Administration

This federal law is about punishing the speech of political enemies, not protecting sensitive international negotiations.

Mike FlynnXinhua/Sipa USA/NewscomTwo 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.

Photo Credit: Xinhua/Sipa USA/Newscom

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • SIV||

    The Logan Act is just for the rubes. Serious Deep State fanbois pin their coup-hopes on the 25th Amendment.

  • BYODB||

    This is pretty accurate, except they're all idiots because using the 25th amendment is actually harder than just a straight-up impeachment. On purpose, too, but they're too dumb to realize it. If someone mentions the 25th, you know they're stupid. It's better to keep your mouth shut and be believed a fool than to open it and remove all doubt.

  • Hugh Akston||

    Also, lying to the FBI (or any government agency) is the duty of any free person, which is precisely why it is a crime.

  • Just Say'n||

    You screwed up here. Flynn lied to the FBI, so you're suppose to say now how people who lie to the FBI are worse than Hitler. Then John is suppose to reply and then you two go back and forth.

    Try again

  • BYODB||

    HAHAHA The Logan Act OMG really?


    So yeah, if they want to use that act in this particular case guess what?


    Virtually every American corporation that does business over sea's better hold their ass, because it'll be pretty hard to argue that they haven't been doing basically the exact same thing since...oh I don't know...forever? As a matter of fact, they are encouraged to do this by the American government as an overt way to keep the peace through trade, and now they want to reverse course?


    Jesus Christ, Democrats really are willing to tear down everything over Trump. Still waiting on impeachment attempt #3 Democrats. Maybe this time you'll have something other than 'feels' to back it up? Nah, I doubt it.


    They've just declared that basically our entire foreign policy plan for the last...50 years? 100? Is invalid. Kudos Democrats, kudos.

  • Kivlor||

    No, you don't understand. This will only be used against Trump and icky Rethuglikkkans. It would never be used on random companies or citizens.

  • Paloma||

    Didn't Jesse Jackson go to Syria and talk Al Assad into releasing an American pilot? He went to Venezuela to "apologize" for some televangelist remark about assassinating Chavez as I recall.

  • Fist of Etiquette||

    Logan was one of the better X-Men movies. I don't know what Shackford is talking about here.

  • ALWAYS RIGHT||

    Mike Flynn rose to general. He pushed around many men by enforcing chicken-shit rules. I hope that he rots in hell.

  • Brian||

    I keep waiting for Flynn to confess to treason, and to point his finger at his co-conspirators, as part of a plea deal.

    Instead, he appears to be confessing to being too stupid to avoid talking to the FBI.

    I'm not sure where this is going, but it doesn't look like it's going anywhere fast.

  • Number 2||

    Just so we are clear, this is the same Eric Posner who believes that the Executive is the All-powerful centerpiece of American government and that any limits on Executive authority, except for political limits, are relics of the past, most notably constitutional limits on Executive power. He supports the Logan Act because it reinforces Executive power and allows the prosecution of anyone who gets in the way of the Executive.

  • Hunthjof||

    Sounds like a standard prog. They know with our system of check and balances and separation of powers they can't get what they want. So they advocate for changing the system to a Parliament style where the executive is basically unchecked to as they say "Get things done"

  • ||

    "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."

    Posner is creating the argument the right is going to use saying Obama is violating the Logan Act by going around the world, speaking to world leaders, and undermining Trump's agenda. These people never think through the consequences and ramifications of their short term benefits of making such stupid, illiberal, and illogical claims.

  • BYODB||

    Won't be read, but I wanted to note that Mark Levin said exactly this on the ride home from work.

  • Mitsima||

    Was just thinking the same thing and what wonderfully poetic justice it would be to see the proggy wunderkind hoisted by a proggy petard.

  • Hunthjof||

    AT the very least the law should be changed so that a President elect and transition team can begin contact with foreign powers after the election results have been certified with the EC. This is ignorant there are people who want to overturn the results of a US election cause the transition team basically did diplomacy 3 weeks early. I would highlight they were backed into this corner by a lame duck POTUS throwing a toddler style temper tantrum cause his party got hacked(Well they say they got hacked there is no proof on the word of the "experts" the DNC hired to say that) and his party lost an election. You will have to forgive me that I am not concerned a POTUS tried to defuse a situation with a Nuclear SUper Power who two months earlier was threatened with cyber-warfare by a sitting VPOTUS. This super power we also need to help stop one of the worst humanitarian disasters in modern history.

  • Longtobefree||

    Doesn't need to be changed. Here's the relevant part;
    "Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on "
    Note the two words without authority. The transition team has authority.

  • josh||

    Just a thought....maybe libertarians should embrace the idea of using the regulatory state to lock up all the idiots, because maybe that's the only way we can start fresh and get it right this time.

    I'm not saying I believe this, but it's an idea. I mean, the average person is already getting screwed by the government, and there are more of us than them. It's simple math.

  • josh||

    A lot more of the average person getting screwed over. Not necessarily libertarians...though there is a moment happening.

  • crufus||

    I doubt that Mueller would bring charges under the Logan Act.

    He seems to be going for easy to prove violations backed up by the threat of more serious, easy to prove charges that carry serious jail time. He is squeezing the people he charges to get dirt to higher ups.

  • Thomas O.||

    I'm already hearing some Team Red snowflakes ranting that Obama should be prosecuted under the Logan Act for criticizing Trump's tweet-mania in India. Either they have no clue what the law actually says, or they want lawmakers and judges to make silly putty out of it just like they did the Commerce Clause.

  • Longtobefree||

    Thought for the day:
    Never talk to the FBI. Only talk to your lawyer.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online