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
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.”