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.