In a Washington Post Op-Ed, I look into the history of the law that forbids Americans engaging with foreign governments to undermine official policies of the United States. The Logan Act, passed in 1799, is one of the key laws that may have been violated by retired lieutenant general Michael Flynn in his dealing with the Russian Ambassador, by Jared Kushner in his dealings with members of the UN Security Council, and by the president-elect at the time if he instructed these men to act to defeat measures of the United States government.
As I explain at the outset of the Op-Ed, “We’re told that the Justice Department has not prosecuted anyone for a Logan Act violation in more than 200 years. What commentators miss is that the Logan Act has been ‘enforced’ and relied upon time and again by the executive branch, most notably through the Department of State.”
I walk through several examples in which the State Department has taken actions such as suspending Americans’ passports out of concern for Logan Act violations and, in much earlier times, expelling foreign diplomats for aiding and abetting Logan Act violations.
Significant examples also occurred during presidential elections—where political leaders, such as major party candidates and their surrogates, can be imbued with unusual power to represent themselves to foreign governments in ways the Logan Act was designed to curtail.
In the Op-Ed, I also explain some of the ways in which Congress has not remained silent.
That said, the Justice Department largely has remained silent. Why? Prosecutors have been deterred, among other things, by having to prove beyond a reasonable doubt that an individual possessed the specific intent to commit the elements of the offence. Different Justice Departments in the past have also been worried that a criminal trial might run into First Amendment problems. However, as professor Tim Zick wrote, the Supreme Court fairly recently made clear in a different but relevant context (Holder v. Humanitarian Law Project) that the First Amendment does not necessarily pose such an obstacle to criminal prosecutions. (For a contrary view, see my Q&A with Steve Vladeck). In terms of criminal prosecutions, it may be useful to consider the successful court martial of a U.S. airman for attempting to provide information to the Soviet Union that would have been detrimental to the United States. In United States v. Mueller, the Board of Review held that even though the charges failed to specify a federal criminal statute, they were “designed and modeled to conform in substance to the offense denounced by [the Logan Act],” which was sufficient to uphold the court martial.
Where does that leave Flynn, Kushner, and the president if he instructed them to act to defeat measures of the United States government? I leave that for others to decide. The main point of the Op-Ed is to show the blind spots created by the focus in public discourse on whether the Justice Department previously enforced the Logan Act through criminal prosecutions.
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