Flynn's Actions: Logan Act Violation?

The Logan Act is a US federal law that criminalises the negotiation of a dispute between the US and a foreign government by an unauthorised American citizen. The act was passed in 1799 and has been amended once, in 1994. The act has never been used to successfully prosecute an American citizen. In 2017, Michael Flynn, former US National Security Advisor, was accused of violating the Logan Act by discussing US sanctions against Russia with a Russian official before Trump took office. Flynn resigned, but was not prosecuted under the act.

Logan Act's constitutionality

The Logan Act is a United States federal law that criminalises the negotiation of a dispute between the United States and a foreign government by an unauthorised American citizen. The Act was passed in 1799 and has been rarely invoked since.

The Logan Act's constitutionality has been questioned on several grounds.

First Amendment

The Logan Act might be unconstitutional under the First Amendment as a restriction on speech. The Act appears to restrict speech based on its content, but it is possible that this restriction could be justified by a strong government interest in protecting US diplomacy. However, it is unclear if this justification would hold up in court, as there has been little judicial discussion of the Act's constitutionality.

Vagueness

The US District Court for the Southern District of New York in Waldron v. British Petroleum Co. (1964) mentioned that the Act was likely unconstitutional due to the vagueness of the terms "defeat" and "measures". However, the court did not rule on this question.

Ex Post Facto Laws

The Constitution does not allow ex post facto laws, which are laws that punish a person for actions taken before the law was enacted and were not illegal at the time. As the Logan Act was passed in response to George Logan's unauthorised negotiations with France in 1798, he could not be punished by the Act.

Doctrine of Desuetude

Some authorities have suggested that the Act is no longer operative under the doctrine of desuetude, or prolonged non-use. The Act has not been the basis of an indictment since 1852 and has never resulted in a conviction.

Official or Quasi-Official Status

The Logan Act applies to persons who act "without authority of the United States". This could be interpreted in different ways. It could mean any person who does not act with the approval of the President, or it could mean only persons who have no public status at all. For example, members of Congress or presidential transition teams might be considered to have "authority of the United States" even when they are not acting with the approval of the President.

In conclusion, while there have been questions about the constitutionality of the Logan Act, there has been little judicial discussion on the topic, and no definitive rulings have been made.

Logan Act's enforcement

The Logan Act is a United States federal law that criminalizes the negotiation of disputes between the United States and a foreign government by unauthorized American citizens. The Act was passed in 1799 and has been amended only once, in 1994, changing the penalty for violation from a $5,000 fine to a fine "under this title".

The Logan Act was passed in response to Dr. George Logan's unauthorized negotiations with France in 1798. Logan, a state legislator and pacifist from Pennsylvania, travelled to Paris and met with various French officials, including Talleyrand and Merlin de Douai, who occupied the highest political office in the French Republic. Logan suggested ways in which France could improve relations with the United States and told his audience that pro-British propagandists in the United States were portraying the French as corrupt and anxious for war. Within days of Logan's last meeting, the French took steps to relieve tensions between the two nations, including lifting a trade embargo and releasing American seamen held captive in French jails.

Despite the apparent success of Logan's mission, his activities were criticized by the Federalist Party in Congress, who were resentful of the praise he received from oppositional Democratic-Republican newspapers. As a result, the Logan Act was introduced and pushed through Congress by the Federalist majority.

While the Logan Act has been used in only two indictments, both in the 19th century, and neither resulting in a conviction, there have been several instances where its enforcement has been considered. In 1941, for example, Under Secretary of State Sumner Welles suggested that former President Herbert Hoover might be prosecuted for his negotiations with European nations over sending food relief. In 1975, Senators John Sparkman and George McGovern travelled to Cuba and met with officials, but the State Department concluded that their activities were not inconsistent with the stipulations of the Logan Act as they were carrying out their legislative duties under the Constitution.

In 2015, 47 Republican senators released an open letter to the Iranian government regarding President Barack Obama's attempts to broker a nuclear arms agreement. A petition on the White House's website requesting that the Obama administration prosecute the senators under the Logan Act accumulated over 320,200 signatures. In 2018, former Secretary of State John Kerry met with the Iranian Foreign Minister to discuss the Iran nuclear deal framework, and while a spokesman for Kerry admitted that he had "urged Iran to keep its commitments under the Iran nuclear agreement", a law professor at the University of Texas argued that Kerry's intent was to preserve US policy, rather than seeking to destroy it, and thus he was not in violation of the Act.

In 2020, notes taken by former FBI special agent Peter Strzok suggested that then-Vice President Joe Biden mentioned the Logan Act during a discussion about the investigation into Michael Flynn's contacts with Russian Ambassador Sergey Kislyak. Flynn's legal team claimed that the Logan Act "became an admitted pretext to investigate General Flynn".

Logan Act and the First Amendment

The Logan Act is a United States federal law enacted in 1799 that criminalizes the negotiation of a dispute between the US and a foreign government by an unauthorized American citizen. The Act was passed following George Logan's unauthorized negotiations with France in 1798. It was signed into law by President John Adams.

The Act has been described as a "paper tiger", with no successful prosecutions to date, owing in part to doubts about its constitutionality. Some claim that prosecuting former National Security Advisor Michael Flynn under the Logan Act would violate the First Amendment. However, this is not clear under the Supreme Court's case law.

By the standards applicable in 1799, the Logan Act would not have violated the First Amendment. The concept of freedom of speech was not as robust as it is today, and federal courts upheld the Sedition Act of 1798, which criminalized speech critical of the government and public officials.

Today, the First Amendment provides robust free speech protections, particularly for speech critical of the government and communications that address matters of public concern, like Flynn's phone calls. Under modern free speech rules, laws that target speech based on its content are subject to a rigorous form of judicial review called "strict scrutiny". This standard requires the government to have a compelling interest in restricting speech and to adopt the least restrictive means of serving that interest.

While the government may have a compelling interest in ensuring that private citizens do not interfere with international diplomacy, the Logan Act criminalizes a broad range of communications with foreign governments and their agents. This is not narrowly tailored to preventing actual interference with diplomacy. For example, the Act seems to prohibit a US citizen from sending an email to Mexican officials encouraging them to reject new trade terms offered by the US administration.

However, the scope of a US citizen's right to communicate with foreign persons and powers is not fully settled. Throughout history, Congress and the Executive Branch have acted as if the First Amendment does not fully apply to communications directed at foreign nationals or audiences. The US government has imposed and enforced content-based limits on the import and export of films, artwork, propaganda, and other materials, excluded aliens on ideological grounds, and restricted citizens' travel to foreign nations.

Few Supreme Court cases have considered speech, press, or associational rights that involve foreign aliens or audiences. The Court has tended to apply a very deferential form of review in such cases and has never squarely addressed how communications directed at foreign persons or powers align with traditional First Amendment principles and justifications.

In conclusion, while the Logan Act may raise First Amendment concerns, the scope of its protection in the context of international diplomacy communications is unclear and subject to differing interpretations.

Logan Act and the Fifth Amendment

The Logan Act is a United States federal law that criminalizes the negotiation of a dispute between the United States and a foreign government by an unauthorized American citizen. 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 has been rarely invoked since its enactment, with only two people ever indicted for violating it and no convictions.

The Fifth Amendment to the United States Constitution protects individuals from being compelled to incriminate themselves. It states that no person "shall be compelled in any criminal case to be a witness against himself". This right applies to all individuals, including American citizens and non-citizens, and is a fundamental aspect of the US legal system.

The Fifth Amendment is relevant to the Logan Act as it provides protection for individuals accused of violating the Act. If a person is charged with negotiating with a foreign government without authorization, they have the right to remain silent and not answer questions that may incriminate them. This is an important protection as it helps ensure that individuals are not forced to provide self-incriminating evidence.

In the context of the Logan Act, the Fifth Amendment also raises questions about the constitutionality of the Act itself. Some scholars have argued that the Act may violate the First Amendment by restricting speech based on its content. However, it is possible that the restriction could be justified by the government's interest in protecting US diplomacy. Additionally, there are concerns about the vagueness of the terms "defeat" and "measures" in the Act, which could make it difficult to determine exactly what conduct is prohibited.

In conclusion, while the Logan Act criminalizes unauthorized negotiations with foreign governments, the Fifth Amendment protects individuals accused of violating the Act by providing them with the right to remain silent. The Fifth Amendment also raises questions about the constitutionality of the Act itself, including potential conflicts with the First Amendment and vagueness in the Act's language.

Logan Act's legislative history

The Logan Act, a United States federal law, was enacted on January 30, 1799, and signed into law by President John Adams. The Act was passed following George Logan's unauthorized negotiations with France in 1798.

In 1797, President Adams sent three ministers to France to negotiate a commercial agreement to protect U.S. shipping. However, the French agents solicited a bribe before negotiations, causing an outcry in the United States—an incident known as the XYZ Affair. To prevent war, George Logan, a state legislator and pacifist, travelled to France in 1798 as a private citizen to meet with government officials. Logan's negotiations with the French were successful, and France took steps to relieve tensions between the two nations. However, upon his return to the United States, Logan was criticized for his actions, with political opponents calling them treasonous.

Secretary of State Timothy Pickering responded to Logan's activities 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." As a result, Representative Roger Griswold introduced the Logan Act, which was pushed through by the Federalist majority in Congress. The Act was intended to prevent unauthorized negotiations from undermining the government's position and to discourage citizens from conducting foreign policy that went against the current administration.

The Logan Act has been amended once since its enactment, in 1994, changing the penalty for violation from a fine of $5,000 to a fine under the title. Violation of the Act is a felony, punishable by a fine or imprisonment of up to three years. Despite this, the Act has rarely been invoked, and only two people have ever been indicted on charges of violating it, in 1802 and 1852, with no convictions.

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