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| What Is the Logan Act? | |
| (4 months later) | |
| The resignation under pressure on Monday night of President Trump’s national security adviser, Michael T. Flynn, centers on the F.B.I.’s scrutiny of his phone calls in late 2016 with the Russian ambassador, Sergey I. Kislyak. The two apparently discussed sanctions the Obama administration was developing to punish Russia over allegations of interference in the 2016 presidential election; officials have asserted that Russia hacked Democratic emails and provided them to WikiLeaks for publication to help Mr. Trump. | The resignation under pressure on Monday night of President Trump’s national security adviser, Michael T. Flynn, centers on the F.B.I.’s scrutiny of his phone calls in late 2016 with the Russian ambassador, Sergey I. Kislyak. The two apparently discussed sanctions the Obama administration was developing to punish Russia over allegations of interference in the 2016 presidential election; officials have asserted that Russia hacked Democratic emails and provided them to WikiLeaks for publication to help Mr. Trump. |
| As a political matter, Mr. Flynn’s fall may have more to do with having misled the vice president-elect at the time, Mike Pence, who falsely told the public that there had been no discussion of sanctions, or with chaos and dysfunction on the National Security Council on his watch, than with any realistic legal exposure. But the affair has elevated interest in a law called the Logan Act. | As a political matter, Mr. Flynn’s fall may have more to do with having misled the vice president-elect at the time, Mike Pence, who falsely told the public that there had been no discussion of sanctions, or with chaos and dysfunction on the National Security Council on his watch, than with any realistic legal exposure. But the affair has elevated interest in a law called the Logan Act. |
| The Logan Act is a 1799 statute that bars private citizens from interfering with diplomatic relations between the United States and foreign governments. It makes it a felony, punishable by a fine or imprisonment of up to three years, if an American citizen, without government authorization, interacts “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.” | The Logan Act is a 1799 statute that bars private citizens from interfering with diplomatic relations between the United States and foreign governments. It makes it a felony, punishable by a fine or imprisonment of up to three years, if an American citizen, without government authorization, interacts “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.” |
| As a preliminary matter, it remains unclear whether then-President-elect Trump — as opposed to Mr. Pence — knew about Mr. Flynn’s conversations with the Russian ambassador. (After the announcement by the Russian president, Vladimir V. Putin, that he would not expel American officials in response to new sanctions because there would soon be a different president, Mr. Trump responded with a Twitter post that said, “Great move on delay (by V. Putin) — I always knew he was very smart!”) | As a preliminary matter, it remains unclear whether then-President-elect Trump — as opposed to Mr. Pence — knew about Mr. Flynn’s conversations with the Russian ambassador. (After the announcement by the Russian president, Vladimir V. Putin, that he would not expel American officials in response to new sanctions because there would soon be a different president, Mr. Trump responded with a Twitter post that said, “Great move on delay (by V. Putin) — I always knew he was very smart!”) |
| But even if Mr. Trump sanctioned the conversation, on its face the Logan Act appears to apply to a president-elect and his top aides, said Laurence Tribe, a Harvard Law School constitutional law professor. | But even if Mr. Trump sanctioned the conversation, on its face the Logan Act appears to apply to a president-elect and his top aides, said Laurence Tribe, a Harvard Law School constitutional law professor. |
| “A president-elect is not an official of the United States,” Mr. Tribe said. “There is no reason why the Logan Act would not apply to the president-elect since it applies to all private citizens, and the people working on the transition are all working in a private-citizen capacity. They have not taken the oath, so they are covered by the act — to the extent that matters.” | “A president-elect is not an official of the United States,” Mr. Tribe said. “There is no reason why the Logan Act would not apply to the president-elect since it applies to all private citizens, and the people working on the transition are all working in a private-citizen capacity. They have not taken the oath, so they are covered by the act — to the extent that matters.” |
| The Logan Act appears to be a so-called dead letter, meaning a law that remains technically on the books but is essentially defunct or toothless. | The Logan Act appears to be a so-called dead letter, meaning a law that remains technically on the books but is essentially defunct or toothless. |
| A study by the Congressional Research Service in 2015 said nobody has ever been prosecuted under the statute and identified only one instance of an indictment under the law: in 1803, the United States attorney in Kentucky obtained from a grand jury an indictment of a Kentucky farmer who had written an article in support of creating a separate nation in the territory west of the fledgling United States that would be an ally to France. But the prosecutor dropped the case. A recent draft scholarly paper posted online by a Federal Appeals Court law clerk identified a second apparent such indictment, involving the reported arrest in 1852 of a man who wrote a letter to the president of Mexico. | A study by the Congressional Research Service in 2015 said nobody has ever been prosecuted under the statute and identified only one instance of an indictment under the law: in 1803, the United States attorney in Kentucky obtained from a grand jury an indictment of a Kentucky farmer who had written an article in support of creating a separate nation in the territory west of the fledgling United States that would be an ally to France. But the prosecutor dropped the case. A recent draft scholarly paper posted online by a Federal Appeals Court law clerk identified a second apparent such indictment, involving the reported arrest in 1852 of a man who wrote a letter to the president of Mexico. |
| Legal scholars have also raised questions about whether the act violates First Amendment free speech protections, although Mr. Tribe said he believed it would be constitutional if applied narrowly to core diplomatic negotiations with another government. | Legal scholars have also raised questions about whether the act violates First Amendment free speech protections, although Mr. Tribe said he believed it would be constitutional if applied narrowly to core diplomatic negotiations with another government. |
| The Logan Act has functioned primarily as rhetorical ammunition for the party that holds the White House during partisan disputes over a foreign policy matter. When White House opponents, usually in Congress, encroach on diplomatic matters, invoking the Logan Act enables the pro-White House party to denounce the other side as not just wrongheaded but lawbreakers. | The Logan Act has functioned primarily as rhetorical ammunition for the party that holds the White House during partisan disputes over a foreign policy matter. When White House opponents, usually in Congress, encroach on diplomatic matters, invoking the Logan Act enables the pro-White House party to denounce the other side as not just wrongheaded but lawbreakers. |
| During the Reagan administration, for example, the Democratic speaker of the House, Jim Wright of Texas, tried to help develop a peace deal in Nicaragua by interacting directly with its president, Daniel Ortega Saavedra, even as the Reagan administration took a harder line and supported overthrowing the Sandinista government. Similarly, during the Obama administration, 47 Republican senators signed a letter to the government of Iran warning the ayatollahs that President Obama’s successor might not follow through on promises Mr. Obama was making as part of negotiations over a deal to end Iran’s nuclear program. During such debates, some White House defenders portrayed the congressional opposition as having violated the Logan Act. | During the Reagan administration, for example, the Democratic speaker of the House, Jim Wright of Texas, tried to help develop a peace deal in Nicaragua by interacting directly with its president, Daniel Ortega Saavedra, even as the Reagan administration took a harder line and supported overthrowing the Sandinista government. Similarly, during the Obama administration, 47 Republican senators signed a letter to the government of Iran warning the ayatollahs that President Obama’s successor might not follow through on promises Mr. Obama was making as part of negotiations over a deal to end Iran’s nuclear program. During such debates, some White House defenders portrayed the congressional opposition as having violated the Logan Act. |
| Given its history, it seems highly unlikely that the Justice Department under Mr. Trump will try to prosecute Mr. Flynn for violating the Logan Act. However, that would not rule out other legal problems. | Given its history, it seems highly unlikely that the Justice Department under Mr. Trump will try to prosecute Mr. Flynn for violating the Logan Act. However, that would not rule out other legal problems. |
| For example, if it turns out that Mr. Flynn made a false statement not just to Mr. Pence but also to F.B.I. agents about his conversations with the Russian ambassador, that could be a separate offense for which there is a history of prosecuting high-level officials. Most recently, late in the Obama administration, former Gen. James Cartwright pleaded guilty to making false statements to F.B.I. agents investigating a leak about cyberattacks on Iran’s nuclear program. Mr. Obama pardoned him before leaving office. | For example, if it turns out that Mr. Flynn made a false statement not just to Mr. Pence but also to F.B.I. agents about his conversations with the Russian ambassador, that could be a separate offense for which there is a history of prosecuting high-level officials. Most recently, late in the Obama administration, former Gen. James Cartwright pleaded guilty to making false statements to F.B.I. agents investigating a leak about cyberattacks on Iran’s nuclear program. Mr. Obama pardoned him before leaving office. |