Welcome to DU!
The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards.
Join the community:
Create a free account
Support DU (and get rid of ads!):
Become a Star Member
Latest Breaking News
General Discussion
The DU Lounge
All Forums
Issue Forums
Culture Forums
Alliance Forums
Region Forums
Support Forums
Help & Search
General Discussion
In reply to the discussion: It IS The Logan Act that has been violated by the 47 Senators. [View all]The Velveteen Ocelot
(116,243 posts)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 doesnt mean Members would have immunity under the Constitutions 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 innot a typo1803). Although most assume this is just a practical obstacle to a contemporary prosecution, its worth reminding folks about desuetudethe 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.
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 doesnt mean Members would have immunity under the Constitutions 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 innot a typo1803). Although most assume this is just a practical obstacle to a contemporary prosecution, its worth reminding folks about desuetudethe 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.
Edit history
Please sign in to view edit histories.
16 replies
= new reply since forum marked as read
Highlight:
NoneDon't highlight anything
5 newestHighlight 5 most recent replies
RecommendedHighlight replies with 5 or more recommendations
I'm afraid you have it turned around. It's not us that has the Republicans by the short and curly's.
Savannahmann
Mar 2015
#10
I'm not overly concerned with your scenario either but I find it interesting
TheKentuckian
Mar 2015
#15