Dusting Off the Dead Letter Logan Act to Bludgeon Trump

Still no evidence of Trump campaign collusion with the Russians.

The 218-year-old Logan Act is receiving heightened attention lately as a possible club to use in bringing down the Trump administration. This archaic criminal statute prohibits U.S. citizens from communicating with any foreign government or its officers, in the absence of authorization by the U.S. government, “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.”

In a New York Times op-ed article by two University of Chicago Law School professors, Daniel Hemel and Eric Posner, entitled “Why the Trump Team Should Fear the Logan Act,” the professors argue that Michael Flynn’s communications in December 2016 with the Russian ambassador to the United States during the transition period leading up to the inauguration of President Trump violates the Logan Act. Moreover, they claim that Mr. Flynn’s filings as part of his guilty plea to one count of making materially false statements to the FBI “further reveal that a ‘very senior member’ of the Trump transition team almost certainly violated the Logan Act, too” by directing Mr. Flynn to convey certain messages to the Russian ambassador. Professors Hemel and Posner appear to be already envisioning a perp walk by one or more high level officials of the Trump administration and even the possible indictment of President Trump himself. “Whoever it was, Robert Mueller, the special counsel, can make out a powerful criminal case against that person,” they wrote.

With all due respect, the law professors are getting way ahead of themselves. They are resorting to the Logan Act to try and criminalize perfectly reasonable communications by Trump transition officials with Russian and other foreign government representatives following the presidential election. They and the Trump-haters trying to gin up a case of obstruction of justice refuse to give up their Ahab quest of revenge for Donald Trump’s victory over Hillary Clinton, even after more than a year of fruitless investigation of the pre-election Russian-Trump campaign collusion phantom.

First, the Logan Act is dead letter law. As even Professors Hemel and Posner acknowledge, there have been no convictions under the Logan Act and only one indictment way back in 1803. No prosecution followed that indictment. 

Second, the professors ignore the benign contents of the communications that Mr. Flynn has now admitted to having with the Russian ambassador.  One of the communications actually bolstered the position of the Obama administration, not undercut it. In that communication, Mr. Flynn asked the Russian government to refrain from escalating the situation in response to sanctions that the Obama administration had just imposed against Russia in retaliation for Russia’s alleged interference in the U.S. presidential election. In other words, if Mr. Flynn was trying to “influence the measures or conduct of any foreign government,” it was to ask the Russian government not to embark on a cycle of tit for tat. That is hardly the act of someone trying to defeat the sanctions imposed by the Obama administration, which remain in place to this day.

In the second communication, Mr. Flynn asked the Russian ambassador, along with representatives of other foreign states, to delay the vote on or defeat a pending United Nations Security Council resolution against Israel, which the Obama administration decided to abstain on instead of veto. Arguably, Mr. Flynn was asking the Russian ambassador to help forestall the infamous anti-Israel Security Council resolution that the Obama administration was willing to let pass last December. However, Mr. Flynn was not intervening here in “any disputes or controversies with the United States.” The resolution was focused on the dispute between Israel and the Palestinians. Moreover, the resolution was not initiated or sponsored by the United States, which neither vetoed the resolution nor voted for it. In her final press conference as U.S. ambassador to the United Nations, Samantha Power declared, “This was not our resolution,” when refusing to answer questions about the resolution’s final text. Clearly, there were no “measures of the United States” before the Security Council that Mr. Flynn was trying to persuade the Russians “to defeat” in violation of the Logan Act.

Third, communications between a president-elect or members of the transition team in advance of a president-elect's inauguration with the representatives of foreign governments are not unusual. President-elect Barack Obama himself, for example, had communications with then-Russian President Dmitry Medvedev and then-Polish President Lech Kaczynski following the 2008 presidential election. These conversations took place during the very time that tensions were building between the United States and Russia over the Bush administration’s decision to deploy missile defense bases in Poland and the Czech Republic. Just a day after Obama’s election, President Medvedev gave a speech denouncing the planned deployment and threatening counter-measures. Did Obama convey a message of flexibility on the missile defense issue during his conversation with President Medvedev in 2008, much as he did four years later when a live microphone picked up his promise to President Medvedev of "more flexibility" on issues important to Russia once Obama was re-elected? Apparently, the issue of the missile defense deployment came up explicitly during Obama’s telephone call with President Kaczynski, during which, according to Obama aides, Obama pointedly refused to reaffirm any commitment on missile defense. A statement issued by the Polish president, on the other hand, claimed Obama had promised that the missile defense project would continue. Either way, in discussing a policy issue with a country that has a vital interest in a dispute between the United States and Russia before Obama took office, Obama could be said to have violated the Logan Act under the same logic employed by Professors Hemel and Posner. 

The truth is that the Logan Act and possible charges of obstruction of justice are being tossed around to distract attention from one simple fact. No evidence has emerged, after a year of multiple investigations, that any members of the Trump campaign “colluded” with the Russians to interfere with the 2016 presidential election. This is all about sore losers abusing the legal system to rationalize their loss to President Trump and to delegitimize his administration from the get-go. 

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