Forty-seven Senate Republicans may have broken the law this week. But no one’s losing any sleep over it.
Pundits and legal scholars are raising questions over whether Sen. Tom Cotton and the 46 Senate Republicans violated the Logan Act when they penned a letter to Iran’s leaders on Monday, undercutting President Barack Obama’s efforts to negotiate a nuclear agreement with those same leaders. The law, passed in 1799, forbids any U.S. citizen — acting without official U.S. authority — from influencing “disputes or controversies” involving the U.S. and a foreign government.
But a quick look at the law’s track record isn’t exactly shudder-inducing: 216 years on the books have resulted in just one indictment and zero prosecutions.
That’s not to say that the Logan Act has been long forgotten. Rather, it seems to pop up every time members of Congress and prominent private citizens get involved on the world stage and are perceived as influencing foreign policy or managing U.S. relations with foreign leaders.
And the latest example came this week after Cotton and his colleagues published an open letter to Iran’s top officials, warning that “we will consider any agreement regarding your nuclear weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khomenei.”
Now the only questions are: did the GOP senators write the letter “with intent to influence the measures or conduct of any foreign government…in relation to any dispute or controversies” with the U.S., as the law states, and were they acting “without authority of the United States”?
The first part of the question is pretty clear: the Republican senators are definitely trying to influence the negotiations to keep the Obama administration from reaching an agreement lawmakers are already calling a bad deal.
“This letter is about stopping Iran from getting a nuclear deal,” Cotton said Tuesday on CNN. “One way that we make sure that we get a better deal is that we stand strong.”
Cotton is frank about his intentions, but he certainly doesn’t think he broke the law, nor do the other signatories like Sen. John McCain, who said he didn’t think the Logan Act applied.
But then again, those accused of violating the Act don’t often think they are — either that, or they’re pretty confident federal prosecutors won’t draw.
President Ronald Reagan accused Rev. Jesse Jackson in 1984 of violating the Logan Act when Jackson traveled to Moscow to press the Soviets for the release of a political prisoner.
And in 1987, House Speaker Jim Wright led his own diplomatic foray on Nicaragua, when he clashed with the Reagan administration over the U.S.’s policy toward Nicaragua and met personally with the president of the Nicaragua’s Sandinista government.
Most recently, then-House Speaker Nancy Pelosi was accused in 2007 of violating the Logan Act when she traveled to Syria to meet with Syrian President Bashar al-Assad, clashing with the Bush administration’s policy. And House Speaker John Boehner’s decision to invite Israeli Prime Minister Benjamin Netanyahu to directly rebuke Obama’s foreign policy in a joint address to Congress also drew fire on the Logan front.
But those accusations never gained enough steam (or perhaps legal standing) to turn into judicial inquiries. It’s a familiar refrain, said Steve Vladeck, a constitutional law professor at American University.
“Every time a member of Congress does something in the foreign policy sphere that’s at odds with the president, someone trots out the Logan Act,” Vladeck said.
And he doesn’t believe the Logan Act would hold up in court if, say, the Justice Department decided to indict Cotton — a move everyone agrees is practically and politically completely untenable.
The Justice Department on Tuesday declined to comment on the Logan Act, but a federal law enforcement official said there’s no interest in pursuing anything along these lines.
“This is a political issue, not a legal issue,” the official told CNN.
Vladeck said it could be argued that the letter’s signatories do wield official U.S. authority and are federal officers in their capacity as U.S. senators.
But even if they don’t, Vladeck said a Logan Act prosecution would fall apart because of subsequent free federal free speech cases that have taken a dim view of attempts to criminalize speech.
Peter Spiro, a constitutional law professor at Temple University, took the opposing track, arguing that the Republican letter is a case “that fits pretty neatly with the elements of a Logan Act violation.”
“These guys are freelancing,” Spiro said. “For these purposes I don’t see them as private individuals except that because they are members of Congress it actually has greater potential to interfere with the successful undertaking of negotiations. It actually cuts the other way.”
Spiro agreed with Vladeck that there’s no chance the senators would face prosecution, and said it’s becoming less and less likely the law will ever be used again.
Part of that is because interactions between lawmakers, officials and private citizens with foreign officials have become increasingly common since the Logan Act’s 1799 inception.
Remember the law’s lone indictment? It happened in 1803.