The Logan Act (1 Stat. 613, 18 U.S.C. § 953, enacted January 30, 1799 ) is a United States federal law that criminalizes negotiation by unauthorized persons with foreign governments having a dispute with the United States. The intent behind the Act is to prevent unauthorized negotiations from undermining 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 amended in 1994, changing the penalty for violation from "fined $5,000" to "fined under this title"; this appears to be the only amendment to the Act. Violation of the Logan Act is a felony.
|Long title||An Act for the punishment of certain Crimes therein specified.|
|Enacted by||the 5th United States Congress|
|Statutes at Large||1 Stat. 613|
|U.S.C. sections created||18 U.S.C. § 953|
|P.L. 103-322, § 330016(1)(K)|
|United States Supreme Court cases|
|United States v. Curtiss-Wright Export Corp.|
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 negotiations with France as a private citizen during the Quasi-War.
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.
Kevin Kearney, writing in a case comment for 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 58–36 in the House and 18–2 in the Senate. Logan himself could not be punished by the Logan law, since the Constitution does not allow ex post facto, or retroactive laws: that is, laws that punish a person for actions taken before the law was enacted, and that were not illegal at the time they were committed. Rather, the intent was to discourage future Logans from conducting foreign policy at cross purposes with the current administration.
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.
During the nineteenth century, the act lay dormant, partly because American foreign policy receded in importance as an issue. During the twentieth century, however, with the Supreme Court paying greater attention to cases involving the First and Fifth amendments to the Constitution, and with the possibility of American foreign policy being more influenced by private individuals becoming more of a prominent issue in politics, there have been more cases potentially involving the Logan Act. Still, the Logan Act has been rarely enforced, possibly because prosecutors have been concerned that speech between a private citizen and a foreign government may still qualify as free speech and be protected in that regard.
§ 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).
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.
[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 violationsEdit
In general, the Act is intended to prevent 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.
The US government 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.
Only two indictments have ever been handed down under the Logan Act. The first 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.
In 1852, Jonas Phillips Levy became the second and, to date the last, person to be indicted under the Logan Act. Levy, an American merchant and sailor who was living in Mexico at the time, had acquired a grant to build a railway across the Isthmus of Tehuantepec, the narrowest point across Mexico. Secretary of State Daniel Webster had been pressuring Mexico to accept a treaty that would allow a different group of American businessmen to build the railway. Levy wrote a letter to Mexican President Mariano Arista urging him to reject Webster's proposed treaty, prompting Webster to seek an indictment against Levy for violating the Logan Act. Federal prosecutors were forced to dismiss the case after Arista refused to hand over the original copy of the letter, depriving them of the evidence they needed to convict Levy.
A probable violation of the Logan Act was Richard Nixon's involvement in the sabotage of the Paris Peace Accords shortly before the 1968 United States Presidential elections. President Lyndon Johnson was able to arrange a peace agreement with North Vietnam, the Vietcong, and the South Vietnamese Saigon governments on the eve of the elections, but was thwarted by H. R. Haldeman during the Chennault Affair that confirmed that Nixon himself had authorized "throwing a monkey wrench" into Johnson's peace negotiations. Richard Nixon subsequently won the election and was never prosecuted for violation of the act.
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 former Obama mentor and professor of constitutional law 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."
In an opinion piece from December 2017, University of Chicago Law School professors Daniel Hemel and Eric Posner argued that Michael Flynn violated the Logan Act in his dealings with the Russian ambassador during the Presidential transition of Donald Trump, while the statements made by Flynn, "further reveal that a 'very senior member' of the Trump transition team almost certainly violated the Logan Act, too."
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 United States House Committee on Ethics 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."
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 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 — 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.
The bill, H.R. 6253, was not enacted into law.
- Inline citations
- History of laws prohibiting correspondence with a foreign government and acceptance of a commission : Memorandum on the history and scope of the laws prohibiting correspondence with a foreign government and acceptance of a commission to serve a foreign state in war, being sections five and nine of the federal penal code. Charles Warren. Government Printing Office, 1917.
- Michael V. Seitzinger (February 1, 2006). "Conducting Foreign Relations Without Authority: The Logan Act" (PDF). Congressional Research Service. Retrieved 2007-04-09.
- Duda, Jeremy (2017-06-13). "A Foreign Affair". History Today.
- Nichols, Michelle (December 2, 2017). "Flynn, Kushner targeted several states in failed U.N. lobbying: diplomats". Reuters.
However, only two Americans have ever been indicted for allegedly violating it – in 1802 and 1852 – and neither was convicted.
- "Why The GOP Iran Letter Is Spurring Debate Over An 18th Century Law". NPR.org. March 11, 2015. Retrieved March 12, 2015.
- Clare Foran, February 15, 2017, The Atlantic, What Is the Logan Act and What Does It Have to Do With Flynn? An obscure federal law is attracting attention amid controversy over the former National Security Adviser’s contacts with Russia, Retrieved February 16, 2017
- Kearney, Kevin M. (1987). "Private Citizens in Foreign Affairs: A Constitutional Analysis". Emory Law Journal. 36. (winter).
- Jacobs, Ben (2015-03-13). "Were 47 Republican senators who wrote to Iran guilty of a crime? Erm, maybe ..." The Guardian. Retrieved 2017-02-12.
- George H. Nash, ed. Freedom Betrayed (2011) p xlix
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Peter Baker (2017-01-02). "Nixon Tried to Spoil Johnson's Vietnam Peace Talks in '68, Notes Show". The New York Times. p. A11. Retrieved 2017-01-04.
Through much of the campaign, the Nixon team maintained a secret channel to the South Vietnamese through Anna Chennault, widow of Claire Lee Chennault, leader of the Flying Tigers in China during World War II. Mrs. Chennault had become a prominent Republican fund-raiser and Washington hostess.
- DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1975, p. 750
- Kucinich, Jackie (2007-06-21). "House Republican wants to restrict Pelosi's travel". The Hill. Retrieved 2017-02-12.
- "An Open Letterto the Leaders of the Islamic Republic of Iran" (PDF). United States Senate. March 9, 2015.
- Baker, Peter (March 9, 2015). "G.O.P. Senators' Letter to Iran About Nuclear Deal Angers White House". The New York Times. Retrieved March 10, 2015.
- Waldman, Paul (March 9, 2015). "Republicans are beginning to act as though Barack Obama isn't even the president". The Washington Post. Retrieved March 10, 2015.
- Benen, Steve (March 9, 2015), Playing with fire: Senate GOP tries to sabotage nuclear talks, MSNBC, retrieved March 10, 2015
- Luciano, Michael (March 9, 2015). "47 Republicans May Have Just Broken the Law By Writing An Outrageous Letter To Iran". The Daily Banter. Retrieved March 10, 2015.
- Lesniewski, Niels (2016-07-28). "Reid Says Trump Should Get Fake Intel Briefings". United States: Roll Call. Retrieved 2017-02-12.
- Noble, Jason (2016-07-28). "Trump's Russia comments could be a felony, Vilsack charges". The Des Moines Register. Retrieved 2017-02-12.
- Kelly, Caroline (2016-07-28). "Former Obama mentor: Trump's Russian hack 'jokes' could 'constitute treason'". Politico. Retrieved 2017-02-12.
- Hemel, Daniel; Posner, Eric (2017-12-04). "Opinion | Why the Trump Team Should Fear the Logan Act". The New York Times. ISSN 0362-4331. Retrieved 2017-12-04.
- Viser, Matt (2018-05-04). "Kerry is quietly seeking to salvage Iran deal he helped craft". The Boston Globe. Retrieved 2017-05-07.
- "Memorandum for all Members and Officers". United States House Committee on Standards of Official Conduct. September 29, 2006. Archived from the original on 2007-04-02. Retrieved 2007-04-09.
- "H.R.6253". Library of Congress.
- Rice, Daniel B. (2017). "Nonenforcement by Accretion: The Logan Act and the Take Care Clause". SSRN 2907523.
- Roth, Brad R. (1993). "The First Amendment in the Foreign Affairs Realm: 'Domesticating' the Restrictions on Citizen Participation". Temple Political and Civil Rights Law Review. 2 (spring).
- Scoville, Ryan M. (2013). "Legislative Diplomacy". SSRN 2211651.
- Vagts, Detlev F. (1966). "The Logan Act: Paper Tiger or Sleeping Giant?". American Journal of International Law. 60 (2): 268–302.