Logan Act - Logan Act

The Logan Act (1 Stat. 613, 18 U.S.C. § 953, enacted January 30, 1799 (1799-01-30)) is a United States federal law that forbids unauthorized citizens from negotiating with foreign governments having a dispute with the U.S. It was intended to prevent the undermining of the government's position. The Act was passed following George Logan's unauthorized negotiations with France in 1798, and was signed into law by President John Adams on January 30, 1799. The Act was last amended in 1994, and violation of the Logan Act is a felony.

To date, only one person has ever been indicted for violating the act's provisions. However, no person has ever been prosecuted for alleged violations of the act.

History

In 1798, amid tensions between the U.S. and France, President Adams sent three envoys to France to negotiate. Negotiations were unsuccessful. Dr. George Logan of Pennsylvania, a state legislator and pacifist, in 1798 engaged in semi-negotiations with France as a private citizen during the Quasi-War.

Kevin Kearney, writing in the Emory Law Journal, described Dr. Logan's activities in France:

Upon his arrival in Paris, he met with various French officials, including Talleyrand. During these meetings, he identified himself as a private citizen, discussed matters of general interest to the French, and told his audience that anti-French sentiment was prevalent in the United States. Logan's conversation with Merlin de Douai, who occupied the highest political office in the French republic, was typical. Logan stated that he did not intend to explain the American government's position, nor to criticize that of France. Instead, he suggested ways in which France could improve relations with the United States, to the benefit of both countries. He also told Merlin that pro-British propagandists in the United States were portraying the French as corrupt and anxious for war, and were stating that any friend of French principles necessarily was an enemy of the United States. Within days of Logan's last meeting, the French took steps to relieve the tensions between the two nations; they lifted the trade embargo then in place, and released American seamen held captive in French jails. Even so, it seems that Logan's actions were not the primary cause of the Directory's actions; instead, Logan had merely provided convenient timing for the implementation of a decision that had already been made.

Despite the apparent success of Logan's mission, his activities aroused the opposition of the Federalist Party in Congress, who were resentful of the praise showered on Logan by oppositional Democratic-Republican newspapers. Secretary of State Timothy Pickering, also of Pennsylvania, responded by suggesting that Congress "act to curb the temerity and impudence of individuals affecting to interfere in public affairs between France and the United States." The result was that Rep. Roger Griswold introduced the Logan Act. It was pushed through by the Federalist majority in Congress by votes of 58â€"36 in the House, and 18â€"2 in the Senate.

Subsequently, Logan himself was appointed and then elected as a Democratic-Republican to the United States Senate from Pennsylvania, and served from July 13, 1801, to March 3, 1807. He was unsuccessful in getting the Logan Act repealed. Despite the Logan Act, he went to England in 1810 on a private diplomatic mission as an emissary of peace in the period before the outbreak of the War of 1812, but was not successful.

Text

§ 953. Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

1 Stat. 613, January 30, 1799, codified at 18 U.S.C. § 953 (2004).

Constitutional authority for foreign relations

Article II, Section 2, Clause 2 of the United States Constitution includes the 'Treaty Clause,' which empowers the President of the United States to propose and chiefly negotiate agreements, which must be confirmed by the Senate, between the United States and other countries, which become treaties between the United States and other countries after the advice and consent of a supermajority of the United States Senate.

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur...

In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), Justice Sutherland, writing for the Court, observed,

"[T]he President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, 'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.'

Accusations of violations

In general, the Act is intended to prohibit unauthorized American citizens from interfering in disputes or controversies between the United States and foreign governments. Although attempts have been made to repeal the Act, it remains law and at least a potential sanction to be used against anyone who without authority interferes in the foreign relations of the United States.

Washington has threatened to use the Act to stop Americans from negotiating with foreign governments. For example, in February 1941 Under Secretary of State Sumner Welles told the press that former President Herbert Hoover might be a target for prosecution because of his negotiations with European nations over sending food relief.

The only actual indictment under the Logan Act was one that occurred in 1803 when a grand jury indicted Francis Flournoy, a Kentucky farmer, who had written an article in the Frankfort Guardian of Freedom under the pen name of "A Western American." In the article, Flournoy advocated a separate nation in the western part of the United States that would ally with France. The United States Attorney for Kentucky, an Adams appointee and brother-in-law of Chief Justice John Marshall, went no further than procuring the indictment of Flournoy, and there was no further prosecution of the Kentucky farmer. The purchase of the Louisiana Territory later that year appeared to cause the separatism issue to become moot, and the case was abandoned.

During the 1968 presidential election, Nixon supporter Anna Chennault told the South Vietnamese government that Nixon would give them a better deal if they waited.

In 1975, Senators John Sparkman and George McGovern were accused of violating the Logan Act when they traveled to Cuba and met with officials there. In considering that case, the U.S. Department of State concluded:

The clear intent of this provision [Logan Act] is to prohibit unauthorized persons from intervening in disputes between the United States and foreign governments. Nothing in section 953 [Logan Act], however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution. In the case of Senators McGovern and Sparkman the executive branch, although it did not in any way encourage the Senators to go to Cuba, was fully informed of the nature and purpose of their visit, and had validated their passports for travel to that country.

Senator McGovern’s report of his discussions with Cuban officials states: "I made it clear that I had no authority to negotiate on behalf of the United States--that I had come to listen and learn..." (Cuban Realities: May 1975, 94th Cong., 1st Sess., August 1975). Senator Sparkman’s contacts with Cuban officials were conducted on a similar basis. The specific issues raised by the Senators (e.g., the Southern Airways case; Luis Tiant’s desire to have his parents visit the United States) would, in any event, appear to fall within the second paragraph of Section 953.

Accordingly, the Department does not consider the activities of Senators Sparkman and McGovern to be inconsistent with the stipulations of Section 953.

In 1984, President Ronald Reagan stated that the activities of the Reverend Jesse Jackson, who had traveled to Cuba and Nicaragua that year and had returned with several Cuban political prisoners seeking asylum in the United States, may have violated the Logan Act, but Jackson was never indicted.

In 1987 and 1988, President Reagan was furious at what he felt to be House Speaker Jim Wright's "intrusion" into the negotiations between Nicaragua's Sandinista government and the Contras for a cease-fire in the long civil war. The National Security Council considered using the Logan Act to muzzle Wright, but nothing ever came of it.

In June 2007, Representative Steve King introduced legislation that would prohibit then-Speaker of the House Nancy Pelosi from drawing on federal funds to travel to foreign states which the U.S. deemed to sponsor terrorism. King claimed that Pelosi's dialogue with the Syrian government violated the Logan Act. The amendment was not adopted.

In March 2015, 47 Republican senators released an open letter to the Iranian government regarding President Barack Obama's attempts to broker a nuclear arms agreement between Iran and six major powers (P5+1). The letter warns Iran of the limitations of President Obama's term in office and constitutional powers and notes that anything done without the advice and consent of the Senate could be undone by the next President. This prompted some commentators to suggest that the letter may have violated the Logan Act. A petition on the White House's We The People website requesting that the Obama administration prosecute the 47 senators under the Logan Act accumulated signatures from over 320,200 people.

In July 2016, U.S. Secretary of Agriculture Tom Vilsack accused Donald Trump of encouraging the Russian government to hack the email of Hillary Clinton, Trump's opponent in the 2016 Presidential Election. Several other Democratic Senators claimed Trump's comments appeared to violate the Logan Act. Laurence Tribe, a constitutional law professor at Harvard Law School, also commented on the incident saying, "Trump's "jokes" inviting an adversary to wage cyberwar against the U.S. appear to violate the Logan Act and might even constitute treason."

Constitutionality

There has been little judicial discussion of the constitutionality of the Logan Act. The U.S. District Court for the Southern District of New York in Waldron v. British Petroleum Co., 231 F. Supp. 72 (S.D.N.Y. 1964), mentioned in passing that the Act was likely unconstitutional due to the vagueness of the terms "defeat" and "measures," but did not rule on the question.

In 2006, the U.S. House Committee on Standards of Official Conduct warned departing members of the terms of the Act in an official Memorandum. The Committee commented in the Memorandum that the Act, "...has never been the basis of a prosecution, and this Committee has publicly questioned its constitutionality... Members should be aware, however, that the law remains on the books."

Proposed revisions

The chair of the House Judiciary Committee in the 109th Congress, F. James Sensenbrenner of Wisconsin, proposed a comprehensive revision and modernization of the federal criminal code in 2006. The bill, H.R. 6253, was not enacted into law. The Logan Act was significantly revamped in the proposed legislation to prohibit only knowingly false statements made under oath. The section revising the Logan Act was proposed to read as follows:

Sec. 923. False statements influencing foreign government â€" Whoever, in relation to any dispute or controversy between a foreign government and the United States, knowingly makes any untrue statement, either orally or in writing, under oath before any person authorized and empowered to administer oaths, which the affiant has knowledge or reason to believe will, or may be used to influence the measures or conduct of any foreign government, or of any officer or agent of any foreign government, to the injury of the United States, or with a view or intent to influence any measure of or action by the United States or any department or agency thereof, to the injury of the United States, shall be imprisoned not more than ten years.