Patterico's Pontifications

2/19/2018

Repeal the Logan Act

Filed under: General — Patterico @ 4:00 pm



As most people following politics know, there’s an obscure law called the Logan Act which makes it a crime for unauthorized people to conduct foreign policy with certain governments under specified circumstances. If someone like Michael Flynn negotiates foreign policy with a Russian ambassador, or Ted Kennedy asks the Rooskies to intervene in a U.S. presidential election, or John Kerry sends a message to Mahmoud Abbas not to yield to Trump’s foreign policy demands . . . well, then in theory, those people should be prosecuted if they were not a) government officials when they took those actions, or b) otherwise authorized to take those actions.

But nobody has ever been successfully prosecuted pursuant to the law, which was passed in 1799. Nobody has even been charged with a violation of the act in over 160 years. As a result, it’s become something of a running joke.

As an example of the way the law is usually discussed, take the piece in Politico titled Confessions of a Russiagate Skeptic, in which a panicky Trump-hater reveals his concern that there might be nothing to the Russia investigation. It’s worth reading for the entertainment value alone (Oh my! what if Trump didn’t do anything!), but for now I am focusing on this passage:

And there are aspects of the Russia scandal, too, that don’t quite add up for me. Take Flynn’s plea bargain. As Preet Bharara, the former U.S. attorney for the Southern District of New York, noted after the deal became public, prosecutors usually prefer to charge participants in a conspiracy with charges related to the underlying crime. But Flynn pleaded guilty only to lying to the FBI, which Bharara surmised suggests might mean Mueller didn’t have much on him. It certainly seems unlikely that any prosecutor would charge Flynn for violating the 219-year-old Logan Act, a constitutionally questionable law that has never been tested in court, for his chats with the Russian ambassador. It’s not even clear if the (stupid) idea of using secure Russian communications gear, as Flynn and Trump’s son-in-law Jared Kushner reportedly considered doing, would have been a crime.

This is typical of the way the law is discussed online. Any mention of it is generally accompanied by a snicker and a dismissive attitude.

That is not good. If we’re not going to enforce a law, we should repeal it. And given how Ted Kennedy and John Kerry and Michael Flynn all skated, it’s obvious we’re not going to enforce it.

So get rid of it already.

And if you think the law makes sense, but needs to be tweaked to meet constitutional standards, then do that. There are those who want the courts to limit its reach — but that’s a job for Congress, not the courts. What Congress should not do is simply leave a law on the books that nobody going to enforce. Because that makes a joke of the rule of law.

The problem is that Congress has no real incentive to repeal bad laws. Glenn Reynolds once proposed a House of Congress devoted to nothing but repealing laws:

If the problem with Congress is that nobody sees repealing laws as job No. 1, why not create a legislative body that can only repeal laws?

The growth of laws and regulation in America has reached the point that pretty much everyone is a felon, whether they know it or not. But nobody in Congress gets much in the way of votes by repealing laws. All the institutional pressures point the other way.

So in a third house of Congress — let’s call it the House of Repeal — the only thing that the elected legislators would have the power to do would be to repeal laws, meaning that for them, all the votes, campaign contributions, media exposure and opportunities for hearings would revolve around paring back the federal behemoth.

It’s a good idea. I bet you could think of some laws to submit for possible repeal.

They could start with the Logan Act. Because it’s a danger to the Rule of Law to have a law on the books that everybody laughs at.

[Cross-posted at RedState and The Jury Talks Back.]

66 Responses to “Repeal the Logan Act”

  1. That want the point of the exercise:
    http://thefederalist.com/2018/02/19/michael-flynns-plea-reversal-uncover-federal-corruption

    The other parallels don’t fit because neither were in executive office, in Kerry’s case, no office, what exactly does he do?

    narciso (d1f714)

  2. Good idea.

    crazy (d99a88)

  3. I think that this is all part of the plan to make such a mess of the law that *everyone* is guilty of something.

    And then selective enforcement gets used to promote political agendas.

    Simon Jester (c8876d)

  4. Also pelosis contact with the assay regime during the Iraq war

    http://www.newsweek.com/2018/01/26/putin-secret-army-waged-war-syria-782762.html

    narciso (d1f714)


  5. Because it’s a danger to the Rule of Law to have a law on the books that everybody laughs at.


    That’s the money line, Patterico. Fact is, I’m sure there are hundreds of silly old unenforced laws and as you said it only makes a joke of the law when that happens. Even modern laws like marijuana laws are ignored and laughed at.

    Rev.Hoagie (6bbda7)

  6. #nevertrump and the CNN Jake Tapper fake news propaganda sluts would excoriate President Trump if he repealed this law

    happyfeet (28a91b)

  7. They don’t even need a separate House to repeal laws. Just form a committee. Congress loves committees.

    dlm (a4eb00)

  8. I think the current administration’s proclivities are more in line with re-instating the Alien and Sedition Acts (which were passed around the same time as the Logan Act).

    Dave (445e97)

  9. And given how Ted Kennedy and John Kerry and Michael Flynn all skated, it’s obvious we’re not going to enforce it.

    Don’t forget candidate Nixon pitching woo to Ho.

    Still, repealing legalities crafted and quilled in the 18th century…

    now there’s an idea.

    DCSCA (797bc0)

  10. Also why bother with foreign registrations, did podesta or wwber have to pay a fine?

    narciso (d1f714)

  11. Who indicted or subpoenaed more journalists Dave?

    narciso (d1f714)

  12. 9… aren’t you welded to that chicken yet, ConDave?

    Colonel Haiku (2601c0)

  13. Blake is the pillow holder:

    https://www.newsbusters.org/journalists/blake-hounshell

    narciso (d1f714)

  14. 13… “Caged (Free) Heat”

    Colonel Haiku (2601c0)


  15. Still, repealing legalities crafted and quilled in the 18th century…

    now there’s an idea.
    DCSCA (797bc0) — 2/19/2018 @ 5:21 pm


    For some reason you seem to think the age of a law determines its validity. You do realize the Constitution was “crafted and quilled” on the 18th century. Have you moved so far left you want to repeal that?

    Rev.Hoagie (6bbda7)

  16. But…..Sally Yates was positive that Flynn violated the Logan Act…..or something.

    askeptic (8d10f9)

  17. Reverend,

    ASPCA is typical of the left in that he believes in a “living Constitution” that allows him to make it up as he goes along.

    NJRob (ccc703)

  18. The Logan Act is like much of our cyber security arsenal … it’s a one off.
    You save it for “The Big One”.

    Neo (d1c681)

  19. “Repeal the Logan Act” and “Vote Ted Cruz 4 President” have about the same chance of bearing fruit.

    And, there seems to be an underlying assumption that there is a shared interest in preserving the Rule of Law. I wish that were the case, but sadly it just ain’t so.

    random viking (6a54c2)

  20. Because I believe in giving statutes their plain meaning, I doubt that when the Logan Act refers to “intercourse,” that covers prostitutes peeing on beds. But here’s the statute, 18 U.S. Code § 953, and you can decide for yourself — free of anything like binding appellate precedent (of which there’s of course none):

    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.

    The history of the Logan Act is also very amusing. The eponymous Logan, a Philadelphia Quaker whose private peace mission to France angered the Federalist Congress into passing a law forbidding such things, was later himself elected — as a Democratic-Republican (today’s Democrats) to Congress, but Rep. Logan was unable to persuade his fellow Congressmen to repeal the act that had been named after him.

    Beldar (fa637a)

  21. When Logan nevertheless went on a later private-diplomacy peace mission to Britain before the War of 1812, even he wasn’t prosecuted under the Logan Act!

    Beldar (fa637a)

  22. Speaking of Logans, I set my DVR to record Logan’s Run (1976) the other day. But after about fifteen minutes, I became dreadfully bored, and so I fast forwarded to the relatively small part that included a pre-Charlie’s Angels Farrah Fawcett (pre-Lee Majors, even). Wow. Achingly lovely, and by far the highlight of an otherwise dreadful film.

    Beldar (fa637a)

  23. Well can’t get no respect, did this have any thing to do with the xyz affair?

    narciso (d1f714)

  24. Come the Convention of the States, I want to see a thorough discussion of requiring mandatory sunset/review provisions of every Act of Congress, including every single current statute. That’s the way to deal with the problem of legislatures refusing to prune and update the law.

    Beldar (fa637a)

  25. I think Logan’s visit and the subsequent Act were roughly contemporaneous with XYZ, narciso, but unrelated so far as I know.

    Beldar (fa637a)

  26. As I was saying too many fancy sets and not enough plot or even explanation for the elder triage came to be.

    narciso (d1f714)

  27. So Loretta Lynch and Jeff Sessions weren’t the only AG’s to suck at their job to faithfully execute the laws of the United States?

    Pinandpuller (a2135d)

  28. Who’s bright idea was it to turn The National Anthem into a sultry jazz number?

    Vocal Coach Reacts

    Pinandpuller (a2135d)

  29. How about every trip Jimmy Carter has taken to places like North Korea. He has arguably devastated US foreign policy with his personal diplomacy.

    Kevin M (752a26)

  30. requiring mandatory sunset/review provisions of every Act of Congress, including every single current statute.

    They’ll just add a section to the continuing resolutions.

    Kevin M (752a26)

  31. The Problem with Math and Music Dan Formosa TED Talk

    Pinandpuller (a2135d)

  32. I get hoagie.

    If a law isn’t being enforced, regardless of reasons, why shouldn’t it be taken off the books.

    Up until 1964 Southern Man ignored the 13th Amendment and as much as possible, following that year. Civil rights for non-whites was non-existent so it was voter nullified.

    Ben burn (b3d5ab)

  33. I’ve noticed teh LAW DOGS cherry-pick their own Rule of Law for arbitrary pet peeves. Heh. Human nature.

    Ben burn (b3d5ab)

  34. And everybody’s noticed that you don’t know what the Thirteenth Amendment is. You are a joke, Bun Burn.

    nk (dbc370)

  35. if that’s the case, Purser Burn, where was AG Jeffy and Sanctimonious Ted when this went down?

    urbanleftbehind (7df0e2)

  36. Jimmy Carter’s double nickle may have been intended to save lives. In practice, it trained a hundrerd million Americans to flout the law.

    phunctor (1812bd)

  37. My kingdom for an edit function!

    phunctor (1812bd)

  38. Well even back then in the late 70s, LEOs and their pension boards had to have foreseen the need to raise revenue. Don’t think it was all about energy conservation.

    urbanleftbehind (7df0e2)


  39. Don’t think it was all about energy conservation.


    Don’t think it was about energy consumption at all. Fixed it.

    Rev.Hoagie (6bbda7)

  40. NK should tweet his expertise like his putative opposite, Trumpty Dumpty.

    Ben burn (b3d5ab)

  41. An attorney who worked for a prominent law firm was charged with making false statements to federal authorities as part of Special Counsel Robert Mueller’s probe of Russian collusion in the 2016 presidential election.

    Alex Van Der Zwaan was charged Feb. 16 with lying to the FBI and Mueller’s office about conversations related to his work on a report prepared by his law firm on the legitimacy of the criminal prosecution of a former Ukrainian prime minister, Yulia Tymoshenko.

    https://www.bloomberg.com/news/articles/2018-02-20/skadden-arps-lawyer-is-charged-with-role-in-u-s-russia-probe

    Ben burn (b3d5ab)

  42. Well I guess our lawyer nk had a point although his pointy head takes prominence.

    https://www.quora.com/Is-constitutional-amendment-a-law

    Ben burn (b3d5ab)

  43. My point stands for the Goomers amongst us.

    Ben burn (b3d5ab)

  44. Trump enthusiastically endorses Romney, illustrating who’s the adult in that relationship.

    http://dailycaller.com/2018/02/20/mitt-romney-trump-endorsement/

    random viking (6a54c2)

  45. OT, but such a great example of the liberal lynch mob in action:

    https://www.wired.com/story/facebook-executive-rob-goldman-apologizes-to-company-and-robert-mueller/

    Lenny (5ea732)

  46. Lenny, The Sultan Kinish pointed this out the other day:

    All motivations tie to belief systems.

    Today’s Democrat Party is led by increasingly radical Progressives, convinced of their own moral magnificence.

    19th-century Progressivism was a critique (operationalized under Wilson) of the U.S. Constitution’s inadequacies.

    Today’s Progressives are naked Marxists, but with a nouveau riche attitude (read: entitlement). They are the elite, as conferred by their SAT scores and elite college degrees. They are

    special — the rules do not apply to them. They believe themselves absolved of the human condition, because their college professors told them “the truth.” They haven’t learned anything since.

    Just like their Soviet forbearers, whom they so admired… all the way back to FDR.

    Always remember: We think they are wrong, while they think we are BAD PEOPLE*. It is an important distinction.
    17/2/18

    I’d like to add they don’t just think we’re bad people, they believe we’re stupid and ignorant as well as racist and white supremacists and homophobic and misogynists. And that applies to anyone with whom they don’t share the common leftist thread but especially Republicans, conservatives practicing Christians and anyone who belongs to the NRA. Basically they believe we’re sub-human. Which is a common historical trait among leftists from Nazi’s to the Khmer Rouge.

    Rev.Hoagie (6bbda7)

  47. 48, just you watch, Romney got his eyes on 2024. He’ll likely still look healthy enough and it serves him well to not let Trump take enough hits that would sour the public on a 77 year old president elect.

    urbanleftbehind (7df0e2)

  48. Trump enthusiastically endorses Romney, illustrating who’s the adult in that relationship.

    Yes, Trump’s adultery has been the talk of the country, lately.

    nk (dbc370)

  49. I think age 35 minimum should have a maximum for President, urban.

    Today’s old farts should stay home.

    Ben burn (b3d5ab)

  50. It aint adultery unless you leave this world like Warren G. Harding or FDR, where they have to extricate your corpse from the in flagrante state.

    urbanleftbehind (5eecdb)

  51. What was FDR doing, Effing his wheelchair?

    Colonel Haiku (bd4dc3)

  52. Looking at these new charges from Mueller, he DOES seem to be pursuing Logan Act charges against Trump aides, apparently on matters unrelated to the campaign.

    Van Der Zwaan informed investigators about an August 2016 text exchange with Gates, but lied about contacts with the other unnamed person and allegedly “deleted and otherwise did not produce emails” sought by prosecutors and an unnamed law firm, according to the documents.

    Van Der Zwaan failed to tell Mueller’s team that he spoke with both Gates and “Person A” in September of the same year and recorded the phone conversations.

    http://www.nydailynews.com/news/politics/mueller-team-reveals-plea-deal-russia-oligarch-son-in-law-article-1.3830985

    Kevin M (752a26)

  53. It’s not even clear if the (stupid) idea of using secure Russian communications gear, as Flynn and Trump’s son-in-law Jared Kushner reportedly considered doing, would have been a crime.

    It’s no crime, although it could be used to hide a crime.

    I think people who think about this prefer to leave the matter unsettled. After all, Lincoln did not want to settle oin the quesiton of whether or not secession was legally possible.

    REPEAL and REPLACE is an idea that applies to more than just Obamacare. Even in this post you talk about that with regard to the Logan Act.

    Sammy Finkelman (02a146)

  54. I haven’t checked to see if this is absolutely correct but my impression as to what happened is as follows:

    The Russians apparently didn’t want to discuss something with too many people, but only with their agent, Mike Flynn, who had been recruited as a spy back when he was head of the DIA in 2013. He had spent a whole day at GRU headquarters in Moscow. But Obama did not give him pe*rmission to make a second visit to GRU headquarters. (Obama was suspicious enough of him to fire him, but not to do any more. Kind of the way Truman handled Alger Hiss. Except that Truman didn’t fire him; he just sidelined him.)

    The Trump people wouldn’t let Mike Flynn communicate too much alone, having been warned about him a little by the Obama Administration. So the Russians, when they saw they couldn’t communicate securely with Mike Flynn, to the exclusion of all other Americans, claimed their communication wasn’t secure from the Obama Administration, and what they wanted to say had to be kept secret since it dealt with a posisble change in policy about Syria and so on. So apparently Kushner said use what you use to communicate between Moscow and your embassy, and we’ll go into the embassy. But Russian Ambassador Sergei Kislyak declined.

    in a third house of Congress — let’s call it the House of Repeal — the only thing that the elected legislators would have the power to do would be to repeal laws,

    That’s no good. Many more laws probably need to be replaced with something simpler and less far reaching, than what need to be totally repealed.

    Sammy Finkelman (02a146)

  55. Somebody jacked an electric buggy from Wal Mart and got it a mile down the road to the Super 8 but what I don’t understand is how they got it over the curb and that far into the grass.

    Never underestimate the handicapped! Damon Wayans

    Pinandpuller (16b0b5)

  56. I like how friendly people will carry me down to the Piggly Wiggly as long as I offer to push the buggy.

    Pinandpuller (16b0b5)

  57. 54. urbanleftbehind (5eecdb) — 2/20/2018 @ 10:13 am

    It aint adultery unless you leave this world like Warren G. Harding or FDR, where they have to extricate your corpse from the in flagrante state.

    Neither of them were with a woman when it happened. Its closer woth Nelson Rockefeller.

    Harding was probably piisoned by MAe West, but she wasn’t anywhere around when he died. In fact nobody can discover where exactly Mae West was. FDR was with Lucy Mercer but not in flagrante delicte. His portrait wss being painted.

    http://www.history.com/this-day-in-history/fdr-dies

    On a clear spring day at his Warm Springs, Georgia, retreat, Roosevelt sat in the living room with Lucy Mercer (with whom he had resumed an extramarital affair), two cousins and his dog Fala, while the artist Elizabeth Shoumatoff painted his portrait. According to presidential biographer Doris Kearns Goodwin, it was about 1 p.m. that the president suddenly complained of a terrific pain in the back of my head and collapsed unconscious. One of the women summoned a doctor, who immediately recognized the symptoms of a massive cerebral hemorrhage and gave the president a shot of adrenaline into the heart in a vain attempt to revive him. Mercer and Shoumatoff quickly left the house, expecting FDR’s family to arrive as soon as word got out. Another doctor phoned first lady Eleanor Roosevelt in Washington D.C., informing her that FDR had fainted. She told the doctor she would travel to Georgia that evening after a scheduled speaking engagement. By 3:30 p.m., though, doctors in Warm Springs had pronounced the president dead.

    They didn’t publicize Lucy mercer’s presence – on;y the painter.

    Sammy Finkelman (02a146)

  58. There is a gap of more than a year in Mae Wests biography. She laid low.

    Sammy Finkelman (02a146)

  59. Yeah Sammy, those people had no reason to lie, right?

    Pinandpuller (16b0b5)

  60. Did Dan’l Boone ever blaze his way through the Mae West Gap?

    Pinandpuller (16b0b5)

  61. Shoumatoff called it a Presidential Still Life, inspired by Gauguin, with a bush hard in the foreground.

    Pinandpuller (16b0b5)

  62. #58–

    This is a parody, right?

    Kevin M (752a26)


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