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The Logan Act: Why House Republicans Can Commit Treason / Sedition Without Consequence

Updated on March 10, 2015

09 March 2015

On 9 March 2015, 47 Republican members of the United States Senate wrote and signed an open letter to Iran. That letter reads as follows:

9 March, 2015

An Open Letter to the Leaders of the Islamic Republic of Iran:

It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system. Thus, we are writing to bring to your attention two features of our Constitution — the power to make binding international agreements and the different character of federal offices — which you should seriously consider as negotiations progress.

First, under our Constitution, while the president negotiates international agreements, Congress plays the significant role of ratifying them. In the case of a treaty, the Senate must ratify it by a two-thirds vote. A so-called congressional-executive agreement requires a majority vote in both the House and the Senate (which, because of procedural rules, effectively means a three-fifths vote in the Senate). Anything not approved by Congress is a mere executive agreement.

Second, the offices of our Constitution have different characteristics.

For example, the president may serve only two 4-year terms, whereas senators may serve an unlimited number of 6-year terms. As applied today, for instance, President Obama will leave office in January 2017, while most of us will remain in office well beyond then — perhaps decades.

What these two constitutional provisions mean is 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 Khamenei. The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.

We hope this letter enriches your knowledge of our constitutional system and promotes mutual understanding and clarity as nuclear negotiations progress.

Sincerely,

{signed by 47 sitting United States Senators}

The Logan Act

The Logan Act prohibits individuals from attempting to undermine the diplomatic process. It reads:

§ 953. Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse 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, shall be fined under this title or imprisoned not more than three years, or both.This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

1 Stat. 613, January 30, 1799, codified at 18 U.S.C. § 953 (2004)

In addition to the Logan Act itself, there is the United States Supreme Court case of United States v. Curtiss-Wright Export Corp. In this case, the Supreme Court ruled that the President of the United States had plenary (that is: unconditional, unrestricted, and absolute) power when it comes to foreign affairs not dependent upon congressional delegation (e.g., the formation of Treaties). Thus, the letter the Senators wrote and sent to Iran is fundamentally flawed.

When I read the Logan Act and I compare this to the letter sent by 47 Senators to the Leadership of Iran... it seems clear to me that these Senators are in violation of the law -- they have committed Sedition and potentially even Treason. But they will not be indicted, they will be be charged, they will not be arrested, and they will face no consequences of their actions.

Why?

Dr. George Logan
Dr. George Logan | Source

Dr. George Logan

The Logan Act is named for, and was written as a result of the actions of, Dr. George Logan. This man, in 1798, went to France and spoke with them about his desires as a pacifist. He told the French of pro-British forces in the United States and advised them as to how to move forward in improving their relationship with us.

He did not claim to have Diplomatic or Ambassadorial power. He did not criticize the United States' or France's position, nor did he attempt to rationalize anything either side was doing. He was just there, of his own accord, talking with them about his views and opinions.

Still, given the fact that the United States and France were experiencing a period of high tension, this was seen as interference in the public affairs of the two nations. Thus, members of the (majority) Federalist Party drafted and passed the Logan Act.

Indictments of the Logan Act

Since this act became law in 1799 -- some 216 years ago -- there have been one, and only one, indictment under this act. That indictment was not Dr. George Logan (he was never indicted or charged under the act that bears his name; obviously, since it was not technically illegal until after he had already gone to France).

No, the only person to be indicted under the Logan Act was Francis Flournoy. This Kentucky farmer was indicted in 1803, only four years after the act became law, for a series of letters he wrote in support of the creation of a new nation in the Louisiana Territory to be allied with France. Nothing came of the indictment, since later than year the entire Louisiana Territory became American property, rendering the whole argument moot.

Steve King -- the last man to attempt to use the Logan Act for political purposes
Steve King -- the last man to attempt to use the Logan Act for political purposes | Source

Others Charged?

Nobody has ever been indicted prior or since. Granted, there have been a lot of grand-standing.

  • In 1968, Nixon supporter Anna Chennault convinced the Vietnamese government to reject any and all talks with the United States, promising them that Nixon would give them a better deal. This worked. Many threatened to charge Ms. Chennault, but nothing came of it.
  • In 1975, Senators John Sparkman and George McGovern traveled to Cuba to meet with officials of that government. Accusations of violations of the Logan Act were bandied about but nothing came of this either.
  • In 1984, Reverend Jessie Jackson traveled to Cuba and Nicaragua; he even returned with Cubans seeking assylum. Although he may have been in violation of the Logan Act (and President Reagan threatened him with the law), nothing ever came of it.
  • In 1987, President Reagan again threatened to use the Logan Act, this time to silence House of Representatives Speaker Jim Right as he interfered with the negotiations the US was having between the Sandanistas and the Contras. Nothing.
  • In 2007, Representative Steve King tried to restrict House Speaker Nancy Pelosi's travel, claiming that her speaking with members of the Syrian government was a violation of the Logan Act. Again, nothing.

Results

The end result is this: the Logan Act has never been a law that has been enforced. It is moot. Sure, the 47 Senators who wrote that open letter are in violation of the Logan Act. They have committed Sedition. Potentially, they are traitors. But it simply does not matter. The Logan Act is a toothless law with no bearing on reality.

But let as assume it were a law that could be enforced. It would still be ignored in this case and remain a non-issue. It would remains so because of the current political climate.

Suppose that on the morning of Tuesday, 10 March 2015, we all awoke to see the news of 47 sitting Senators being arrested for Sedition. This would fall right into the right-wing narrative. Instantly, FOX News and other elements of the right-wing faux-information political propaganda machine would be in full-blown "I told you so!" mode. They would be screaming as loudly as they could that this was just one more example of this President acting like a dictator.

Thus, as much as I would like to see all 47 of these people charged with a crime -- as much as they all deserve to be charged with a crime -- it is just never going to happen.

Comments

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    • profile image

      Howard Schneider 2 years ago from Parsippany, New Jersey

      Great Hub and excellent analysis, KDLadage. You are right that the right wing media would be all over a mass arrest. These Senators are a perfect example of the lack of statesmen in the GOP. They are damaging our foreign policy and this rabid bunch has no respect for President Obama. They simply want war. Heaven help us.

    • FitnezzJim profile image

      FitnezzJim 2 years ago from Fredericksburg, Virginia

      Thank you for writing this, I had not seen the contents of the letter, and was wondering why educating anybody about the contents of our Constitution could be regarded as seditious or treasonous.

      The attention the letter received may have reminded many here in the United States of what the Constitution says regarding the making of treaties and the potential impact those treaties can have on American law. The treaty-making process does offer a mechanism by which the normal lawmaking process through Congress can be bypassed, however, it requires a deliberateness of intent that we take on faith is not present in this case.

      Given that, it can only be a good for people to read and try to understand the contents of the Constitution. Since it was left out in the article, the relevant section is the second paragraph of Section 2 of Article 2 of the Constitution. The transcript is available at http://www.archives.gov/exhibits/charters/constitu...

    • tsadjatko profile image

      TSAD 2 years ago from maybe (the guy or girl) next door

      The Southern District of New York in Waldron v. British Petroleum Co., 231 F. Supp. 72 (S.D.N.Y. 1964), mentioned in passing that the Act was likely unconstitutional due to the vagueness of the terms "defeat" and "measures," but did not rule on the question. 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.

      CNN says 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 intent was there but 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, Steve Vladeck, a constitutional law professor at American University, 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 there's no chance the senators would face prosecution.

      So this law is irrelevant, obviously unconstitutional, that's why it's never used, and an irrelevant law is not a grounds for saying anyone committed sedition. In the end Fox or anyone else needs no further example of this President acting like a dictator, he's given plenty enough examples already. It's virtually impossible to find a policy or action of his where he isn't acting or wanting to act like a dictator.

    • Trevor Wallace profile image

      Trevor Wallace 2 years ago from Outside Houston, Tx

      Great hub! I'll definitely be putting a link to this in the piece I'm currently working on - a spotlight on some of the clowns that signed the letter.

    • tsadjatko profile image

      TSAD 2 years ago from maybe (the guy or girl) next door

      Yeah, while you are at it why don't you shine the spotlight on the real clown x-senator and x-secretary of state, Hiliary Clinton and the Lawsuits now being filed for her email scam by AP and Judicial watch and undoubtedly others. Listen to what judicial watch says about it, the state department has already admitted lying about the emails. http://video.foxnews.com/v/4107779541001/e-mails-s...

      And you think the clowns are senators who only desire to keep Iran from getting nuclear weapons? Give me a break, like you don't have a twisted agenda.

    • KDLadage profile image
      Author

      K David Ladage 2 years ago from Cedar Rapids, IA

      I have not written about Hillary Clinton and the e-mail scandal because I am still trying to get a grasp on it. I am still doing research and trying to separate the wheat from the chaff.

      Please do not try to act as though you know everything about me because of my stance on one article. What 'agenda' are you speaking of?

    • tsadjatko profile image

      TSAD 2 years ago from maybe (the guy or girl) next door

      KDLadage, I think you missed the comment before mine, I was obviously replying to the comment by Trevor Wallace, not your writing.

    • Trevor Wallace profile image

      Trevor Wallace 2 years ago from Outside Houston, Tx

      Well, then bring it to my page. I'm sure there're plenty of articles over there you can lambaste me for.

    • tsadjatko profile image

      TSAD 2 years ago from maybe (the guy or girl) next door

      TW, Sounds like you are the one who is looking to lambaste our senators, who are doing nothing unpatriotic while the Democrat Presidential front runner has compromised national security, lied about her emails, committed a felony, and who knows what else she's trying to cover up. Listen to this and tell me how she didn't commit a felony. http://video.foxnews.com/v/4108284670001/did-hilla...

      But you guys seem to think the most important thing to report on is a letter written by 47 senators aimed at one thing and one thing only, keeping the president from putting Iran on the path to acquiring nuclear weapons. Obama signing a bad deal or Hillary acting above the law isn't even on your back burner, that is a twisted agenda.

    • Trevor Wallace profile image

      Trevor Wallace 2 years ago from Outside Houston, Tx

      The Hillary thing is a red herring here. It's not the issue being discussed and I love how people on both sides love to use straw men and ad hominems to dodge arguments. The letter sent to Iran earlier this week is quasi-treasonous. Quasi. That's the issue here, not another Clinton scandal.

      tasdjatko, those 47 have done nothing to help the world's view of the US being run by a group of stumblebums. Of both parties, admittedly. Do you honestly think Obama trusts that Iran only wants nuclear material for energy applications as they claim? No, he's not that naïve.

      But we need to also be looking at limiting Israel's nuclear capability - one of the main reason Iran so desperately wants a nuke - as they are the biggest bully over there right now and the Republicans act as though Netanyahu is the second freaking coming, when he's actually been playing us for over a decade.

      http://www.sott.net/article/283603-Netanyahu-caugh...

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