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1799 law jumps into focus after Flynn’s chats with Russia envoy
WASHINGTON — Michael Flynn’s conversations with a Russian diplomat roiled the White House and put a spotlight on a little-enforced law prohibiting U.S. citizens from trying to influence a foreign government in disputes with the United States.
Flynn resigned as national security adviser Monday after conceding that he may have discussed U.S. sanctions in phone calls with Russia’s ambassador to the United States while Barack Obama was still in office.
Those conversations may have violated the Logan Act, which aims to bar private citizens from conducting diplomacy, though White House spokesman Sean Spicer said Tuesday that no legal issues arose.
Still, the centuries-old act has been so rarely invoked that legal experts say it may no longer be valid.
What is the Logan Act?
Lawmakers enacted the Logan Act in 1799 after George Logan, a friend of Thomas Jefferson, made a private visit to France in an attempt to ease tensions with the U.S. after the French Revolution. That trip was criticized as an inappropriate interference in affairs between the countries, prompting the passage of the law.
Has it ever been used before?
Since then, there appear to have been few indictments, and no prosecutions, under the act. Legal experts say that would make potential violations even harder to prove in court.
The one known indictment came in 1803 after a Kentucky farmer wrote a newspaper article advocating for a separate country within the United States that would ally with France. But no prosecution followed.
“It really is an anachronism,” written during a different time in diplomatic and constitutional history, said Stephen Vladeck, a professor at the University of Texas School of Law.
Over the years, politicians and public figures have been accused of violating the Logan Act, often by political rivals.
The Rev. Jesse Jackson’s diplomatic activities in several countries in the 1980s, including trips to Cuba to negotiate the release prisoners, raised questions about whether he violated the act. So did former NBA star Dennis Rodman’s travels to North Korea to meet with dictator Kim Jong Un in 2014. Another allegation involved a letter sent by 47 GOP senators to Iran’s leaders in 2015, warning them against making a nuclear deal with Obama.
None of those cases yielded criminal charges.
If Flynn discussed sanctions, didn’t he break the law?
Discussing economic sanctions against Russia with the Russian envoy during the American presidential transition could have been a violation of the act. But that doesn’t mean it will result in charges against Flynn.
When it comes to the Logan Act, prosecutors would have to overcome a difficult defense that Flynn’s phone calls were protected free speech. They would also have to prove that Flynn was acting without the authority of the U.S., Vladeck said.
“It’s a fun game for commentators to play,” he said. “It’s a way of turning what looks like a really bad move into a potentially illegal one.”