Michael Flynn has no need to fear the Lo­gan Act

Since 1799, the law has been a po­lit­i­cal threat, not a crim­i­nal one, writes Jeremy Duda

The Washington Post Sunday - - OUTLOOK - Twit­ter: @jere­my­duda

When news broke that Pres­i­dent Trump’s now-for­mer na­tional se­cu­rity ad­viser Michael Flynn had dis­cussed U.S. sanc­tions on Rus­sia with the Rus­sian am­bas­sador be­fore Trump was sworn in, the Lo­gan Act was the fed­eral statute of the mo­ment.

The New York Times wrote that Flynn’s res­ig­na­tion had “el­e­vated in­ter­est” in the “dusty” law. NPR noted that the law had “got­ten a lot of at­ten­tion re­cently and is at the cen­ter of the scan­dal sur­round­ing Flynn.” Time magazine re­ported that the “ob­scure law was sud­denly on the minds of Wash­ing­ton ob­servers.”

What­ever Flynn’s other trans­gres­sions may be — the White House says he lied to Vice Pres­i­dent Pence about his con­ver­sa­tions last year with Am­bas­sador Sergey Kislyak, and the FBI could in­ves­ti­gate whether he told fed­eral agents the truth in in­ter­views — he al­most cer­tainly doesn’t have to worry about the Lo­gan Act. In the 218 years since its pas­sage, not a sin­gle per­son has been con­victed of vi­o­lat­ing the law. Only twice has some­one even been charged with the crime.

On the books since 1799, the Lo­gan Act pro­hibits Amer­i­cans from cor­re­spond­ing with for­eign gov­ern­ments “re­lat­ing to con­tro­ver­sies or dis­putes which do or shall ex­ist” be­tween those gov­ern­ments and the United States. On pa­per, Lo­gan Act vi­o­la­tions are felonies that bring prison sen­tences of up to three years. In re­al­ity, the act is lit­tle more than a his­tor­i­cal cu­rios­ity that has proved to be one of the most use­less laws ever con­trived by Congress.

That’s not to say vi­o­la­tions are never

se­ri­ous, even if no charges are brought. Richard Nixon, for ex­am­ple, al­most cer­tainly vi­o­lated the Lo­gan Act with his back-chan­nel deal­ings with South Viet­nam dur­ing the 1968 pres­i­den­tial cam­paign, which helped scut­tle Pres­i­dent Lyn­don John­son’s at­tempts to be­gin peace ne­go­ti­a­tions be­fore he left of­fice. A pri­vate cit­i­zen’s com­mu­ni­ca­tions with a for­eign gov­ern­ment can still be dele­te­ri­ous to U.S. in­ter­ests if pros­e­cu­tors opt not to pur­sue the mat­ter.

The Lo­gan Act’s real use, though, has been as a weapon to bran­dish at po­lit­i­cal op­po­nents.

Flynn joins a list of Amer­i­cans, in­clud­ing Her­bert Hoover, Henry Wal­lace, Nixon, Jane Fonda, Jesse Jack­son, Jim Wright and Ross Perot, whom ad­ver­saries have spec­u­lated may have bro­ken the law. Wal­lace, a for­mer vice pres­i­dent, was ac­cused of vi­o­lat­ing the Lo­gan Act af­ter he toured Europe to stump against the Mar­shall Plan and the Tru­man Doc­trine in the early days of the Cold War. The Nixon White House con­sid­ered charges against Fonda for her foray to North Viet­nam in 1972.

Good in­ten­tions have been no pro­tec­tion from ac­cu­sa­tions. Franklin Roo­sevelt’s ad­min­is­tra­tion ac­cused his im­me­di­ate pre­de­ces­sor, Hoover, then a pri­vate cit­i­zen, of vi­o­lat­ing the act when he sought to ne­go­ti­ate food re­lief for Euro­pean coun­tries dur­ing World War II. Martin Luther King Jr. was threat­ened with the Lo­gan Act when he pro­posed writ­ing to both sides in the Viet­nam War to me­di­ate peace in 1965. Henry Ford had faced sim­i­lar threats in 1915 for his “peace ship” to Europe dur­ing World War I. Ron­ald Rea­gan al­leged vi­o­la­tions by Jack­son af­ter his 1984 trips to Cuba, Nicaragua and Syria, which re­sulted in the re­lease of a cap­tured Amer­i­can pi­lot and a hand­ful of Cuban po­lit­i­cal pris­on­ers, and the pres­i­dent later ac­cused Wright, then speaker of the House, for ne­go­ti­at­ing with Nicaragua’s gov­ern­ment in a bid to bring the coun­try’s civil war to an end. Perot was ac­cused by some for try­ing to bring Amer­i­can POWs home from Viet­nam.

More re­cently, Democrats ac­cused Sen. Tom Cot­ton (R-Ark.) of vi­o­lat­ing the law in 2015 when he wrote a let­ter, signed by 46 other Repub­li­can sen­a­tors, to the lead­ers of Iran, cau­tion­ing that Congress could over­turn any deal they struck with Pres­i­dent Barack Obama. Repub­li­cans made sim­i­lar ac­cu­sa­tions against then-House Speaker Nancy Pelosi af­ter a 2007 trip she took to Syria. Trump faced Lo­gan Act al­le­ga­tions when he called on Rus­sia to re­lease Hil­lary Clin­ton’s missing emails.

De­spite that long his­tory, only two prose­cu­tions have ever been at­tempted un­der the Lo­gan Act, nei­ther of which ever went to trial. The first came just four years af­ter it passed. A Ken­tucky farmer named Fran­cis Flournoy was in­dicted in 1803 af­ter he wrote an ar­ti­cle in a Frank­fort news­pa­per call­ing for the Western states to se­cede and form a union with French ter­ri­tory in the con­ti­nent’s heart­land. Ken­tucky’s U.S. at­tor­ney, a lin­ger­ing John Adams ap­pointee, de­ter­mined that Flournoy had con­ducted indi­rect cor­re­spon­dence with France and charged him un­der the Lo­gan Act. The case quickly fiz­zled out, and Flournoy went un­pun­ished. (The French ter­ri­tory in ques­tion would soon join the United States any­way in Thomas Jef­fer­son’s Louisiana Pur­chase.)

Nearly over­looked is the 1852 case of a mer­chant named Jonas P. Levy. (I learned about it from Daniel B. Rice, a Wash­ing­ton law clerk who men­tions it in an un­pub­lished pa­per he wrote last month.) Con­tem­po­rary ac­counts re­ported that Levy was charged un­der “an ob­so­lete law of 1799” at the in­sis­tence of Sec­re­tary of State Daniel Web­ster. Levy wanted to build a rail­road across Mex­ico’s Te­huan­te­pec isth­mus and wrote to Mex­i­can Pres­i­dent Mar­i­ano Arista, urg­ing him to re­ject a pro­posed treaty that would have al­lowed a com­peti­tor to build the route in­stead. The gov­ern­ment dropped its case when Arista re­fused to turn over the let­ter.

That the law keeps be­ing used in par­ti­san po­lit­i­cal bick­er­ing is no sur­prise: It has its roots there, too. The Lo­gan Act passed as a re­sult of ac­ri­mony be­tween the rul­ing Fed­er­al­ists and the Demo­cratic-Repub­li­cans dur­ing Adams’s ad­min­is­tra­tion. As the “Quasi-War” be­tween the United States and France heated up and threat­ened to ex­plode into full-blown hos­til­i­ties, a Philadel­phia doc­tor named Ge­orge Lo­gan trav­eled to France at his own ex­pense to talk the na­tion’s lead­ers back from the brink.

The Fed­er­al­ists were deeply sus­pi­cious of revo­lu­tion­ary France and its Demo­cratic-Repub­li­can sup­port­ers. Lo­gan was a prom­i­nent Demo­cratic-Repub­li­can and a friend of Jef­fer­son, who had served as U.S. min­is­ter to France. So Congress passed a law to pre­vent such usurpa­tions. Or so the Fed­er­al­ists thought.

Since then, the Lo­gan Act has been no de­ter­rent to Amer­i­cans look­ing to en­gage in free­lance diplo­macy. Even Lo­gan wasn’t dis­suaded by the law: In 1810, he trav­eled Bri­tain in an at­tempt to stop what would be­come the War of 1812. The ad­min­is­tra­tion of James Madi­son, a Demo­cratic-Repub­li­can who had cor­re­sponded with Lo­gan about the pos­si­bil­ity of war and was aware of his trip, did not share the Fed­er­al­ists’ con­cerns about Lo­gan’s unau­tho­rized diplo­macy and made no move to pun­ish him.

Why have there been so few charges de­spite the count­less ac­cu­sa­tions since 1803? Usu­ally, the peo­ple mak­ing the ac­cu­sa­tions are politi­cians, not pros­e­cu­tors, who have no au­thor­ity to bring crim­i­nal charges. As a po­lit­i­cal weapon, it’s ef­fec­tive even with­out le­gal fol­lowup. And with no test cases, it’s not clear that the law would be found con­sti­tu­tional if chal­lenged.

Even be­fore the first at­tempt to en­force it, law­mak­ers be­gan what would be a se­ries of ef­forts to re­peal the act. In 1802, Demo­cratic-Repub­li­cans un­suc­cess­fully tar­geted the Lo­gan Act as part of a cam­paign to strike Fed­er­al­ist laws. At least two other tries have been made: Sen. Ted Kennedy (D-Mass.) tried to re­peal it in a larger crim­i­nal-code reform bill in 1977. But Sen. James Allen (D-Ala.) re­fused to al­low the leg­is­la­tion to move for­ward with the Lo­gan Act in­cluded, and the pro­vi­sion was re­moved in 1978. Rep. An­thony Beilen­son (D-Calif.) pushed a bill to re­peal the Lo­gan Act in 1980. It died in the House Ju­di­ciary Com­mit­tee with­out a hear­ing.

Beilen­son called the Lo­gan Act noth­ing more than a tool for “pe­ri­odic calls for pros­e­cu­tion mo­ti­vated by op­po­si­tion to the cause be­ing ex­pressed in­stead of ac­tual con­cern about trea­son.” To him, that was cause to re­peal it. For oth­ers — as the chat­ter about Flynn this past week showed — it may be a good enough rea­son to keep it on the books.

With no con­vic­tions, the Lo­gan Act’s real pur­pose has been as a weapon to bran­dish by ac­cus­ing par­ti­san op­po­nents of vi­o­lat­ing it.

Jeremy Duda is a jour­nal­ist who cov­ers state gov­ern­ment and politics in Phoenix, and the au­thor of “If This Be Trea­son: The Amer­i­can Rogues and Rebels Who Walked the Line Be­tween Dis­sent and Be­trayal.”

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.