The controversy over former National Security Adviser Michael Flynn’s communications with the Russian ambassador to the United States has revived interest in an obscure 18th century federal law known as the Logan Act.
On Monday evening, Flynn resigned after reports that he had discussed U.S. sanctions against Russia with the Russian official before Trump took office. At the end of December, the Obama administration imposed sanctions following the determination of U.S. intelligence officials that Russia intervened in the 2016 presidential election to undermine then-candidate Hillary Clinton’s chances of winning.
The New York Times reported on Tuesday that after Obama advisers learned of Flynn’s communications with the Russian ambassador they “grew suspicious that perhaps there had been a secret deal between the incoming team and Moscow, which could violate the rarely enforced, two-century-old Logan Act barring private citizens from negotiating with foreign powers in disputes with the United States.”
The Logan Act is a 1799 law that calls for the fine or imprisonment of private citizens who attempt to intervene without authorization in disputes or controversies between the United States and foreign governments. It has never been used to successfully prosecute any American citizen.
To better understand the history of the law, and what’s at stake, I spoke with Steve Vladeck, a law professor at the University of Texas School of Law. A transcript of our conversation lightly edited for length and clarity appears below.
Clare Foran: Why do we have this law in the first place?
Steve Vladeck: The law dates back to 1799, and it was enacted at a very different moment in American history. We were much more into punishing partisan political differences as crimes at that moment. This was the same Congress that passed the notorious Alien and Sedition Acts. The Logan Act was basically a response to an effort by a Philadelphia Quaker named George Logan to try to negotiate directly with the French government. This was a big scandal at the time in foreign affairs because Logan—a Democratic-Republican—was trying to thwart the policy of the Federalists, who controlled both houses of Congress and the White House. It was a controversy back at home, and Congress took none too kindly to this effort to circumvent them or President Adams on a question of diplomatic relations.
Foran: So even at the time it was passed it wasn’t applied successfully?
Vladeck: It’s unconstitutional to impose punishment retroactively. So Congress could not punish Doctor Logan for something that he did before they passed the statute that now bears his name. It wasn’t intended to apply to him; it was inspired by him. The idea was that we didn’t want more George Logans in the future.
Foran: Can you explain what you mean when you say that at the time the U.S. was much more interested in punishing partisan political differences?
Vladeck: Well, I think the most important thing to understand about the Logan Act is that it wasn’t until the 20th century that the Supreme Court really breathed life into the First and Fifth Amendments when it comes to prosecuting individuals for their speech or their conduct. At the Founding, there was much more tolerance for the idea that someone could be sent to jail for nasty speech, for libelous speech, for partisan political opposition. The partisan politics of that day were often unbound by what we today think of as obvious constitutional constraints, just because the Supreme Court had not recognized them yet. At that time, Congress thought more capaciously about its power to punish speech, in ways that we would never think a contemporary Congress would act because of the intervening development of our modern First and Fifth Amendment jurisprudence.
Foran: So why has it never been used to prosecute anyone successfully?
Vladeck: I think part of why it has lain dormant for all this time is a combination of disuse and subsequent intervening developments. There weren’t that many examples into the 19th century of other George Logans doing similar things, and by the time private foreign policy became an issue once more in the 20th century, we had a far-more-powerful First Amendment that was very skeptical of content-based restrictions on speech. We had a modern vagueness doctrine that disfavors criminal statutes where it’s not necessarily what clear what exactly they prohibit. The Supreme Court has basically relegated content-based restrictions, or restrictions on what a person can say, to the dustbin of permissible legislation because it equates them with censorship.
Foran: In the intervening time from when it was passed until now, how frequently has the act been dredged up, and has it often been for partisan political purposes?
Vladeck: I think it is not a coincidence that it is usually critics of a particular political party who trot out the Logan Act to criticize activities implicating our foreign policy, whether by members of Congress or transition team officials or individuals who aren’t in the executive branch but have close ties to it. I think the theory is that the Logan Act is an easy principle to grasp. And I think we have a tendency these days to not think a policy objection is sufficiently strong unless we can also explain some way in which it’s also grounded in the law. But I also think it gets brought up because people want to make headlines, and the easy headline is that Mike Flynn may have violated the Logan Act, even though to me there are probably lots of other headlines about the Flynn situation that are probably far more important.
Foran: Such as?
Vladeck: Well, there are a lot of questions that I think are more important. Did Flynn make false statements to the FBI, which would be a crime and one that is enforced on a far more regular basis than the Logan Act, for example. Even if he didn’t, should we have concerns about the fact that he misled senior government officials and they didn’t do anything about it until The Washington Post reported it?
I think that to the extent that the Logan Act is misunderstood, that allows it to consume oxygen that that might better be served on other questions. That includes scrutiny of the policy behind the Logan Act. Whether or not it’s viable today, there are reasons why Congress passed the Logan Act. And even if the law itself is unenforceable today, that doesn’t mean the question of whether and why we should be wary of individuals attempting to intervene in negotiations with foreign governments isn’t worth discussing.
Foran: Do you think there should be a law that is more easily enforceable that could sanction people for attempting to negotiate with foreign governments without authorization?
Vladeck: I think it depends on who the person is, and why they’re doing it. I’m not bothered by the transition team speaking with foreign governments because they’re about to be in charge. I’m not bothered by members of Congress who, in their official capacity, communicate with foreign governments as part of their legislative function.
So part of the issue here is yes, I do think that the actual facts of the Logan case where you have a true private citizen directly interfering with U.S. foreign policy is worth talking about, and might be worth prohibiting.
But the way the law is written it could be so much more broadly sweeping than that, and I think that’s a big part of why it is so problematic. The way it’s written now it’s not clear that it would only apply to the George Logans of the world. It might apply to circumstances like what happened with Mike Flynn, and that gives me pause, because there’s a reason why the modern Supreme Court requires Congress to write criminal statutes much more specifically than the way the Logan Act is written. I think if Congress really cares about the principle behind the Logan Act, and not just scoring political points out of it, then they ought to rewrite the statute.
Foran: So what happens now in terms of Flynn’s resignation and the Logan Act?
Vladeck: The FBI’s job is to consider all the laws on the books, but it’s not the FBI that has prosecutorial discretion, that’s the responsibility of the Justice Department. The FBI’s job is to see if people broke the law, and then it’s the Justice Department’s job to decide if they should be prosecuted for it. But if anything that brings us to the last problem with the Logan Act, which in this case is, who is going to enforce it? Somehow I don’t think that [Attorney General] Jeff Sessions is going to going to be in a big hurry to prosecute Mike Flynn. I don’t think any prosecutor would bring this case for legal reasons, but I think there are also political reasons why it certainly won’t be Jeff Sessions.