It IS The Logan Act that has been violated by the 47 Senators.

[Hutzpa]

Here is what the act states clearly;

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.

http://legal-dictionary.thefreedictionary.com/Logan+Act

Now that we understand the crime committed, what can the Democrats do to show this action does not go unpunished and in the process send a message to others?

1) They should first strip them each and every member whose name appears on the list of their privileges in Congress.

2) Since their action is to do with National Security, all correspondences should be monitored by DOJ and Homeland Security. From phone conversation to fax messages right down to people they interact with.


3) or they can choose to go to jail for three years.

Bottom line, the Obama administration and the Dems in Congress have just found themselves a bunch of poodles they can pet and be friends with.

[The Velveteen Ocelot]

1. Or not. Here's the problem (or problems) with the Logan Act:

This is a good analysis:

I. “Without authority of the United States”

The text of the Logan Act makes it a crime for citizens to engage in “any correspondence or intercourse with any foreign government . . . with intent to influence the measures or conduct of any foreign government . . . in relation to any disputes or controversies with the United States.” As Peter explained yesterday, the Senators’ letter certainly seems to fall within this language. But, critically, the citizen must act “without authority of the United States.” Although most assume that means without authority of the Executive Branch, the Logan Act itself does not specify what this term means, and the State Department told Congress in 1975 that “Nothing in section 953 . . . would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.” That doesn’t mean Members would have immunity under the Constitution’s Speech and Debate Clause; it just means the statute would arguably not apply in the first place. Combined with the rule of lenity and the constitutional concerns identified below, it seems likely that contemporary and/or future courts would interpret this provision to not apply to such official communications from Congress.

II. The First Amendment (and the Fifth)

The Logan Act, recall, was written in 1799, well over a century before the rise of modern First (and Fifth) Amendment doctrine with regard to protections for speech and against prosecutions for unclear misconduct. It seems quite likely, as one district court suggested in passing in 1964, that the terms of the statute are both unconstitutionally vague and in any event unlikely to survive the far stricter standards contemporary courts place on such content-based restrictions on speech. Thus, even if the Act does encompass official communications from Members of Congress acting within their legislative capacity, it seems likely that it would not survive modern First Amendment scrutiny were it to be invoked in such a case.

III. Desuetude

Finally, as Peter noted yesterday, the Logan Act has never been successfully used (indeed, the last indictment under the Act was in–not a typo–1803). Although most assume this is just a practical obstacle to a contemporary prosecution, it’s worth reminding folks about “desuetude”–the legal doctrine pursuant to which statutes (especially criminal ones) may lapse if they are never enforced (interested readers should check out a fantastic 2006 student note on the subject in the Harvard Law Review). If ever there was a case in which desuetude could be a successful defense to a federal criminal prosecution, I have to think that this would be it.

A bit more here: http://www.lawfareblog.com/2015/03/logan-act/

I don't mean to poop in anybody's cornflakes, but the reality is that the Logan Act and three bucks will buy you a double-skim latte - and I hate to see this drum being beaten over and over where there's absolutely no possibility that those assholes will ever be prosecuted under that or any other law. What will happen, I hope, is that they will end up paying a very high political price.

[Hutzpa]

5. In Law there is always assumptions, right?

Now, even though part of the Law is not clear based on the action of the parties involved, we can assume that their action is what defines this clause. Yes the Law is clearly conflicting in this area, but we can also assume that this area is at the descresion of the attorney to define the actions of said Senators.

Although most assume that means without authority of the Executive Branch, the Logan Act itself does not specify what this term means, and the State Department told Congress in 1975 that “Nothing in section 953 . . . would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.”

What legislative duties are those? That is the area I'm looking, does it include contacting a nation that the country is about to go to war with, or negotiation with crucial disagreement? I'm sure there are other areas in Congressional Law that can be tied in with The Logan Act that will show violation., right?

[dumbcat]

7. Advice and Consent?

What legislative duties are those?

In the United States, "advice and consent" is a power of the United States Senate to be consulted on and approve treaties signed and appointments made by the President of the United States to public positions, including Cabinet secretaries, federal judges, United States Attorneys, and ambassadors. This power is also held by several state Senates, which are consulted on and approve various appointments made by the state's chief executive, such as some statewide officials, state departmental heads in the Governor's cabinet, and state judges (in some states).

http://en.wikipedia.org/wiki/Advice_and_consent

[Hutzpa]

8. I think you left out the most important part

The Constitution

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; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

This is what you probably are trying to say which does correlates with your points in a way but does not apply in this instance.

[dumbcat]

9. You asked what legislative duties

I told you. You brought up a power of the President. The President does not have a legislative duty.

I answered the question you asked.

[hootinholler]

2. The charge turns on the phrase "without authority"

I seriously doubt that a duly elected senator would be charged because the election grants at least some authority.

Now then, what Baker and Poppy Bush did in 1980 was without authority.

[SomethingFishy]

13. But if we interpret the law that way then any elected official

can claim they are acting with authority, and start negotiations with anyone they want over whatever they want.

It seems to me the law was put in place so we don't look like idiots with some people negotiating peace and some dropping bombs.

[LynnTTT]

3. Won't pass the test

Look at the end of the first line. Says "without the authority of the United States". Doesn't say you need the authority of the President. Like it or not, 47 Senators could easily say that they, as elected officials, do have the authority of the United States

[Blue Meany]

4. To my understanding, individual Senators have no

authority at all. It is the Senate, as a body, that has authority. If it had been signed by 51 Senators, that argument would be strengthened, of course.

[Hutzpa]

6. Very good point

It was not authorize by the Senate therefore this will not cover them.

[Savannahmann]

10. I'm afraid you have it turned around. It's not us that has the Republicans by the short and curly's.

They have us by those delicate hairs. Yes, I am certain. What do the RW always warn about? Overreach of Presidential Power. President Obama taking executive action. Declaring martial law, and in general flaunting the intent of the Constitution.

The extreme RW believes this, and they're waiting for the right moment to scream I told you so, revolt. The Bundy Ranch standoff was a test. A test that was a no win scenario for the Federal Government. If the Federal Agents went in guns blazing, victory or survival was in question since the people on the ranch were almost as well armed, about as well armored, and outnumbered the Federal Agents. But even if the Federal Agents had won, there would have been another Ruby Ridge/Waco massacre to rally the RW. If the Federal Government backed down, it looked like the Militia won. Someone with a brain decided a little humiliation was preferable to a Civil War.

This is much the same. A No win scenario for the Democratic Party and the executive branch. If the Government announces they are investigating the Senate for possible violations of the Logan Act, the image of third world dictators arresting their own legislatures flashes into minds all over the nation about ten minutes after the announcement. If any single Senator is arrested, the same image flashes through the minds of far too many of our fellow citizens. If we arrest all 47, then all hell breaks loose in hours, or days at the most.

Now, you may laugh and say let them. But let me give you some numbers to consider. The Army has half a million active duty soldiers. That is not just infantry. That is engineers, artillery, medical corps, supply, transportation, and all of the other things that make an army work. If we're lucky, about one in ten is an infantryman, or fifty thousand. With every single military person counted, reservist and national guard included, we can say we have about two million military people. Including troops deployed to Korea, Germany, Italy, the Middle East, and god alone knows how many other destinations. That includes sailors, Marines, Air Force, and let's not forget Coast Guard. I don't think the Navy is going to be a lot of help against an armed insurrection do you?

If the insurrection lasts more than about thirty days, the Military will start experiencing shortages of food, fuel, and critical parts. More and more troops will have to be shunted over to keeping the highways open and the supplies of fuel, munitions, parts, and food moving.

But what about the Police? There are roughly one and a half million people with badges, guns, and the powers of arrest including city, state, county, and federal agents. So in the best of circumstances, if we federalized the police, and sent the military out, we would have one person with a gun, for every one hundred citizens. How many different ways can you say badly outnumbered?

So giving into rabid arrest the traitors now types would precipitate a breakdown of civil society in no more than two weeks. Then cops stop going to work, because they are not going to die fighting their neighbors. The National Guard is paralyzed by indecision as the soldiers contemplate firing on friends and relatives. Then Soldiers start deserting. The Reservists find the same thing.

Now, we can go down that path if we are crazy enough. But frankly, I still believe the nation can be saved, and I'd hate to see it end here by force of arms.

Before you get started, let's be honest. The Military doesn't have enough attack helicopters, fighter jets, or Drones to maintain air superiority over the entire nation. Additionally all those things require parts, fuel, and a lot of maintenance to keep them flying. Tanks you say? How many tanks do you think the Military has? If you guessed less than ten thousand, you're right.

http://www.globalfirepower.com/country-military-strength-detail.asp?country_id=united-states-of-america

How many cities do we have? How many tanks could we spare from the major cities to go out and subdue the countryside? Or would we just draft everyone of military age and give them a rifle and say you're one of us now go and kill them? Any bets how that turned out?

Be careful of what you wish for, and pray that the people in charge are thinking more clearly about the results of this proposed action than you are. Because if they aren't, this nation isn't going to be celebrating too many more birthdays.

[Hutzpa]

12. Surely you can't be serious.

Last edited Wed Mar 11, 2015, 09:01 PM - Edit history (1)

Maybe arresting them might cause the GOP to throw a temper tantrum, but aren't we used to their tantrums? So because of fear of them carrying out a rebellion we should let them continue to unstable the Peace process with Iran while sabotaging all the efforts of other sovereign Nations who are allied with United States just so the GOP can fulfill some type of invincible fantasy that only seem to exists in their heads and in the head of their supporters?

Are we to believe their pouting will put the American public in danger because of their selfish actions, all because the Republicans fringe lunatics have been allowed to influence a party that once believed in fairness doctrine? Why should Obama be responsible for their line of thinking and hatred from their thoughts such as how Obama is going to remain as president for a third term, he wants their guns, their wives and kids so let's build a bunker so we all get away from from him and those big bad mex-he-can before they destroy our real America. How petulant can those who are peddling this nonsense get and to some extent some in the media for even reporting on these stuff? and also you for writing it here on DU, do you believe in these outlandish narratives too?

If that's their new bargaining chip they're using, then aides to our Reps in Congress should start thinking of turning in their credentials because they have no reason to be working with Democratic Senators and Representatives.

[Savannahmann]

14. Actually, I'm very serious.

Tell me who has ever been convicted of the Logan Act. I'll tell you the answer if you don't know, NOBODY. Since it's passed, during the eighteenth century, plenty of members of congress have gone all over and spoken to leaders of other nations. But let's pretend that it's a cut and dried as you pretend. Go ahead. Arrest Cotton. Arrest them all. The Constitution allows the Senators to be arrested for Felonies. So arrest them.

Then act shocked when armed lunatics take to the streets within weeks of this action. Pretend that you had no idea that arresting a Senator would cause such a response. Perhaps you didn't take a good look at the Bundy Ranch. Let's take a look shall we?



Take a look at that picture. Those rifles are almost certainly semi-automatic versions of the rifles the Federal Agents have. Do you see the vest the fellow facing the camera on the right has on? That is probably, but not certainly, a type of vest containing bullet proof panels rated to stop rifle rounds.



This is what they wanted. This is the dream they had, and they came far too close for my tastes.

How about what's going on in Texas regarding the Border? The lunatics are running around in the wilderness down there armed and armored.

http://www.mysanantonio.com/news/local/article/Photos-show-border-militias-moving-across-Texas-5647487.php#photo-6643819

Now it might be a bunch of harmless guys hanging around on weekends pretending that they're doing patrols.



But it might be that they are hoping to increase their numbers, and increase their status among the population.

Oh why worry, there can't be that many of them. President Obama won the re-election with 51.3% of the vote man. http://www.splcenter.org/what-we-do/hate-and-extremism

939 known hate groups according to the Southern Poverty Law Center. Even if every group has a measly ten members, we're within spitting distance of ten thousand people. That doesn't include militia types by the way. That's the neo-Nazi, skinhead, white supremacist groups. As for Militia groups? http://www.usatoday.com/story/news/nation/2013/03/05/southern-poverty-law-center-militias-gun-control/1964411/

So do you think that these groups, and their supporters will sit back idly while a Senator is arrested? Your plan of Coercion of the Senator is not only illegal, but if the Senator goes out and tells the world about it could well trigger the violent responses I'm warning about. Look how much anger percolated to the surface over the idea that one kind of a dozen different types of ammunition might get banned. Just one type, out of the many different types. Copper jacketed, coated, hollow points, as well as aluminium, and other alloy coated rounds would still have been legal, but the RW went ape. Do you think that they'll do nothing while their great fear, a move by President Obama to arrest the Senate Republicans goes on right in front of them? Even arresting one?

My friend, you underestimate your opponent. You think they are a bunch of mouth breathing idiots. Yet, they manage to defeat us in far too many elections. They outmaneuver us in far too many public opinion polls. Stop pretending they are as stupid as you wish they were, and take some time to really examine them. If you possess a modicum of wisdom within your body, you will realize the danger that exists in triggering them.

But let's return to the letter. What harm has been done? Seriously? The Republicans look like asses. If we do nothing, they will continue to look like asses and we stand a fair chance of taking the Senate Back. If we overreact and come down like the hammer of an angry deity on these disloyal treasonous bastards, we will find that we are not the all powerful angry deities of our dreams.

If you are not wise enough to learn about your opponent before taking action that is nearly guaranteed to cause a dramatic result we won't like, then pray that those in power are wiser than you are. Because if they aren't, this summer will be most uncomfortable for a lot of our citizens who will be caught in the middle of this crap. When the Military reports they are unable to restore order, what do we do then? Form our own militias? Get military weapons and form the Democratic Army of America?

Far too many of these militia types are veterans. They know how to fight, they were trained by the military. They feel betrayed, abandoned, and if you start arresting Republicans they will feel threatened.

Oh and there was an idea here at the time that the Bundy Militia types were all wannabe toughs who would shit their pants the second a cop looked at them in anything like a harsh manner. http://www.dailykos.com/story/2014/06/09/1305724/-The-Las-Vegas-murders-Cliven-Bundy-the-militia-movement-and-the-NRA

Yep, they're harmless. Shake a feather pillow at them and they'll shit their pants.

[TheKentuckian]

15. I'm not overly concerned with your scenario either but I find it interesting

that after all the crazy shenanigans through the many years that it is this that is going to require the push all the way to the wall.

It is funny to see the folks who brought us "truth and reconciliation" a time or two, impeachment is off the table, look forward not backwards, and not to get sanctimonious talking about arresting 47 sitting Senators for writing a letter salting negotiations for a non binding agreement.

[onenote]

16. 18 USC 2384 "Private Correspondence With Foreign Governments"

That's the formal title of the Logan Act.

See the word "private"?

An open letter? Not so private. Which is important because public speech is generally protected by the First Amendment.

Think about it for a second. If the members of Congress had stood up on the floor of the Senate and read the letter, and it was published in the Congressional Record, would it be considered a Logan Act violation? Of course not.

There has never been a conviction under the Logan Act. And this case if it was brought, which it won't be, wouldn't be the first.

Finally, how exactly could the Democrats strip the gang of 47 of their privileges? The last time I checked, the Republicans controlled the Senate. Expelling 47 Senators -- well, that's going to be hard since it takes a 2/3 vote and until their expelled, the 47 are still Senator and still get to vote.

Look, we're all rightly pissed at the repubs stunt and it certainly hasn't been anything positive for them. But emulating their stupidity by overreaching and ignoring statutory language, two centuries of precedent, and the rules of the Senate isn't the path to be advocating.