corrupting electors as impeachable offense, Daniel Hemel, Edmund Randolph, emoluments, Eric Posner, George Mason, James Madison, jared kushner, Logan Act, Michael Flynn, pardon power
The following post first appeared today as an article on Slate.
The Logan Act is a 1799 statute that makes it a crime for a U.S. citizen to contact agents of a foreign government for the purpose either of influencing that government’s policies in disputes with the United States or of defeating U.S. policies. In a New York Times op-ed piece on Monday, Professors Daniel Hemel and Eric Posner argue that the Logan Act remains good law, despite the fact that no one has ever been successfully prosecuted under it. They contend that former national security advisor Michael Flynn violated it during the transition period by secretly contacting the Russian ambassador and asking that the Russian government not respond sharply to Obama administration sanctions against Russia for meddling in the 2016 election. They suggest that Trump son-in-law and senior advisor Jared Kushner is at risk of being indicted and imprisoned under the Logan Act. And they contend that, if Trump violated the Act, he would be impeachable on that ground.
I agree with the first two points. The Logan Act remains on the books and long disuse does not automatically invalidate it. Likewise, General Flynn did violate the statute. He and the other transition team officials mentioned in Flynn’s plea documents plainly sought to influence the policies of foreign governments or to defeat U.S. policies.
That said, much as I admire Hemel and Posner, they are wrong to think that Special Counsel Robert Mueller should consider indicting anyone under the Logan Act, and equally wrong to think that a Logan Act violation would be a tenable ground for impeaching a president. More importantly, their focus on a statutory obscurity like the Logan Act exemplifies an error a good many Trump opponents are making—fixating on the technical violation of a criminal statute as a basis for impeachment.
As for Mueller, he and his team have two intertwined objectives. The first is to investigate and prosecute crimes connected with Russian interference in the 2016 election. The second objective, unstated in his mandate but equally significant, is to ensure that the results of the investigation will withstand—at least in the eyes of rational observers—the inevitable allegations of political bias. Employing the Logan Act would defeat this crucial second objective.
There are good reasons why the Logan Act has not been successfully invoked in more than 200 years. The primary one is that it is violated routinely and enforcing it would contravene well-established norms of political behavior.
Consider, as but one example, the plethora of private persons and organizations interested in U.S.-Israeli relations. Lobbying groups like the American Israel Public Affairs Committee and J Street are routinely involved in disagreements between Israel and the United States. Sometimes they align with the policies of the administration of the day in Washington. Sometimes they oppose those policies as inimical to the well-being of Israel. Regardless of the issue or the prevailing degree of comity between the U.S. and Israeli governments of any given moment, American Jewish groups are constantly in “correspondence or intercourse” with official representatives of Israel.
The same could be said of any number of other associations. Many Latino groups oppose current U.S. immigration policy. Does anyone seriously suppose that representatives of such groups should be criminally prosecuted if they met with, say, the Mexican ambassador, and urged the Mexican government to continue opposing Trump’s infamous wall? Amnesty International and Human Rights Watch vigorously opposed the U.S. practice of torture and so-called “extraordinary rendition” during the Iraq War and its aftermath. Should American members of these organizations be prosecuted if they met with representatives of foreign governments urging them, in the words of the Logan Act, to “defeat the measures of the United States.”
Criminal prosecutions for this ordinary form of American political behavior would excite clamorous public objections, invite comparison to efforts by authoritarian regimes like Russia to suppress domestic contact with Western open society groups, and draw immediate constitutional challenge on either First Amendment or overbreadth grounds. The fact that in Flynn’s case the American contacting foreign agents had quasi-official status as a member of a presidential transition team made it rather more likely that the meddling would have some practical effect. But transition contacts with foreign governments, complete with signals of varying degrees of directness about impending policy changes, are hardly unprecedented, even if they are poor form. And it’s hard to see why a member of a transition team should be prosecuted when others never have been.
This is not to say that contacts between members of the Trump team and Russia during the transition period were necessarily innocent. They may end up as components of some criminal charge. But Mueller and his people are not likely to complicate any case they bring by basing it on a controversial and constitutionally doubtful relic like the Logan Act. Doing so would be a gift to those who seek to question the legitimacy of their work. And these guys seem unlikely to score that kind of own goal.
For similar reasons, a Logan Act violation is not a plausible impeachable offense. It is a crime, yes, but, as the Clinton affair taught us, not all crimes are “high crimes and misdemeanors.” Conversely, not all “high crimes and misdemeanors” are violations of the criminal code. For example, James Madison maintained that abuse of the pardon power was impeachable. Edmund Randolph thought the same of receiving foreign emoluments. George Mason, who proposed the phrase “high crimes and misdemeanors,” was most concerned with what he termed “attempts to subvert the constitution.” Speaking generally, an impeachable offense is conduct that is both grave and involves genuine danger to the constitutional order. The danger can arise either if the conduct itself endangers constitutional order—as for example Nixon’s efforts to use intelligence and law enforcement against political enemies—or if the conduct indicates that the president is personally unfit to continue service. A violation of the Logan Act—which has been virtually ignored without consequence for two centuries—just doesn’t cut it.
Of course, if Trump were shown to have “colluded” with the Russians to rig the election and if, in gratitude for the help, he made policy concessions of some sort, either during the transition or later, the concessions could be part of an argument that Trump’s pre-election behavior constituted an impeachable offense. Founder George Mason observed that corrupting the “electors” – by which he meant members of the Electoral College — would be impeachable. In the social media age, one could fairly argue that some kinds of cooperation with a foreign power to affect voter decisions is a modern equivalent. But in such a case, the impeachable offense would be the election meddling in collusion with a hostile power and the giving of the quid pro quo. Adding the Logan Act into the equation would merely confuse the issue and weaken the case.
The fact that brilliant legal scholars like Hemel and Posner are arguing for reanimation of a legal derelict like the Logan Act seems likely to reinforce two themes regularly advanced by Trump’s defenders—first, that Trump opponents are mining the federal criminal code for nitpicky crimes that can be stretched to cover normal political behavior, and second, the popular misconception that impeachable “high crimes and misdemeanors” must be indictable crimes.
The reality is that, however thorough and professional Mueller’s team may be, they have a limited brief—to investigate the Trump campaign’s involvement with Russian interference in the 2016 election. They are turning up a lot of dodgy behavior, but it is entirely possible, indeed likely, they will never produce indisputable evidence that Trump himself committed the kind of plain, unambiguous crime that people across the political spectrum will accept as an impeachable offense.
Sure, it’s possible that Mueller will find that Vladimir Putin has had leverage over Trump for years, or that the efforts of Trump’s bumbling crew of children, in-laws, and campaign sycophants to cadge Clinton dirt from the Russians rendered Trump subject to Russian blackmail. But face it—that kind of dramatic, unambiguous outcome is improbable. The current wishful obsession with Mueller’s work merely invites crushing disappointment among Trump’s opponents and cries of “I told you so” from his defenders. What’s more, a narrow focus on pre-election conduct in a way that relies on dubious laws like the Logan Act diverts attention away from what ought to be a primary focus of any effort to impeach Trump—his near-daily post-election assaults on the norms of American constitutional order. It is that behavior that makes Trump a constant danger to the Republic. And it was to defend against precisely that kind of danger that the Founders gave us the power to impeach a president.
Donald Barnes said:
I and I can understand and appreciate your professional reluctance, as a former prosecutor and a professor of law, to voice any agreement to any impeachable offence by our current President until they are charged by the Special Prosecutor and/or passed in the House. But, to assert that violating the Logan Act is not impeachable because no one has ever been charged under the statute is professional error. Under our Constitution all that is required for impeachment procedures to be initiated is the commission of a high crime or misdemeanor by the President and/or Vice President. As a blogger, your best argument against a Logan Act violation leading to impeachment is that the current House majority would not do so even if Mr. Mueller filed charges, leaving due process sidelined until 45’s term as President ends.
Special Prosecutor’s Mueller’s plea agreement with General Kelly is the beginning of the end of 45’s term. General Kelly’s plea deal is a knight’s gambit by Mr. Mueller seeking a Presidential resignation to spare Mr. Kushner and other members of the Trump family, Presidential campaign staff, transition team, and White House Staff members federal prosecution for their misguided, illegal, efforts to aid 45 in his efforts to gain and hold the Presidency. I and I wish the Office Special Prosecutor success in expeditiously ending our present Constitutional crisis. All that is required is gratitude and grace from a fool.
David F said:
I have a question. Could any alleged violations of the Logan Act here be impeachable/indictable *in the context* of adjacent Trump or Trump Campaign crimes? Could it be argued that where salutary neglect has been applied in all other cases of potential violations of the Logan Act, these particular violations are so egregious and extensive, and so materially significant to the perpetration of other, more serious crimes, that indictment over the Logan Act becomes relevant?
Are there places (generally speaking) in the adjudication of criminal law where a relatively minor charge tends to be collocated with the pursuit of more serious charges, as opposed to standing alone?
A good question. I suppose my answer would be twofold.
1) I have two problems with the Logan Act as a vehicle for any prosecution of Mr. Trump’s subordinates (Mr. Mueller is surpassingly unlikely to seek an indictment of Mr. Trump himself because DOJ policy is that a sitting president cannot be indicted, and Mueller is subject to DOJ rules.) The first and main problem is that I think the statute is probably unconstitutional either as a violation of the First Amendment or because it is what lawyers call “overbroad,” meaning that as written it criminalizes a great many things that are almost surely legal and that congress almost surely did not intend to criminalize, and there’s no way of telling what it’s supposed to apply to and what it’s not. Particularly in a case of surpassing national importance like this one, prosecutors shouldn’t be relying on a statute that is, at the very least, of doubtful constitutionality. My second problem with the statute is that, because it has never been the basis of successful prosecution in the over two centuries since its enactment in 1799, using it now in this case invites attacks on the whole Mueller investigation as a partisan exercise so desperate for a conviction that is willing to use a shaky statute that’s never been enforced. Accordingly, I don’t think the Logan Act should be the basis for any charge in relation to the Russia investigation, regardless of what else Mr. Trump and associates may have done.
2) As to your particular question, there are certainly occasions when less serious offenses are charged along with more serious ones. But, to repeat, my concern about the Logan Act is not that it is not serious — at least in the sense of the possible penalty; it is, after all, a felony. My concern is that it’s not a constitutionally valid law. And sticking one or more counts based on a constitutionally invalid statute into an indictment that includes other serious, and constitutionally valid, charges can’t bootstrap the invalid statute into validity.
It is important to emphasize that, just because the Logan Act is constitutionally suspect doesn’t mean that the contacts between Trump affiliates and various foreign representatives were OK. They may prove to be elements of some other criminal offense. And more importantly, they are potentially part of a case for impeachment. If it were shown that Mr. Trump did work actively with Russia to affect the outcome of the election, or even that he was trying hard to do so, that might very well be impeachable, whether any statutory crime was committed or not. The key in the present conversation is not to get obsessed by the Logan Act. It’s largely irrelevant to the central questions being asked in the Mueller probe.
David F said:
Thanks for the clarification. On the other hand, Seth Abramson here (https://threadreaderapp.com/thread/937816893448245248) interprets the act in a way that contradicts your description of an “overbroad” act that is regularly violated by commonplace NGO and advocacy operations, though he is also of the belief that Logan Act violations are not a significant element in the Special Counsel’s case. Specifically, he says:
[Note that it is not my intention to play telephone between you and Mr. Abramson; this is only a matter of personal curiosity. I appreciate your taking time to respond to me.]
“No, the reason The Logan Act has never resulted in a conviction is that there are *almost no situations in which it applies*.”
“If The Logan Act prohibited private citizens from “talking” to representatives of foreign governments, it’d be violated *daily* all around the world. And indeed, if the Act said what the GOP now says it does, it would’ve been repealed just a few months after its 1799 passage.”
“What The Logan Act *actually* prohibits is corresponding with any foreign government (the actus reus) with the “intent to influence the measures or conduct” (the mens rea) of such a foreign government.”
“In common parlance, initiating a dialogue with someone whose result you intend to be the influencing of their measures and/or conduct is called a “negotiation.
The Logan Act prohibits private citizens negotiating U.S. policy—measures and/or conduct—with foreign governments.”
“Any foreign government dealing with a private U.S. citizen who claimed to be acting “with authority” from the U.S. government would just call up the relevant U.S. official in that arena of negotiation and ask, “Is this person negotiating on your behalf?””
“So the purpose of The Logan Act—a federal criminal statute that’s survived repeal for 218 years—is to PREVENT an incoming presidential administration from effectuating a *months-long* “soft coup” of the validly elected administration it’s replacing. See how important that is?”
On the other other hand, if the statute is unConstitutional, then whether it strictly applies doesn’t matter. But Abramson discounts this concern:
“Below is the lobbyist exception to 18 U.S.C § 953, which helps keep the law from being unconstitutionally over-broad or vague. If a foreign government has harmed you—in your personal capacity, or an employer for whom you’re an agent—you can seek redress from that government.”
“Nothing in the Act prevents “speaking” to foreign governments—it’s *negotiation*. Nothing in the Act prevents redressing a harm (or possible harm) aimed at *you*—only interfering in disputes between governments. Nothing prevents talking “relations”—rather, concrete disputes.”
“If The Logan Act were unconstitutional, Congress had 218 years to repeal it—as they’ve repealed hundreds of laws. They didn’t do so because a) they know exactly what it prohibits, and b) their assumption—and everyone’s—has been no one would be *stupid enough* to violate it.”
Perhaps in retort you would point out the original language of the statute *is* rather oblique with regard to such a specific case of subversion of the sitting administration by the incoming one…
Mr. Abramson’s analysis is, to put it mildly, not grounded in the law. To take but two of numerous examples from the material you cite:
1) His importation of a requirement of “dialogue” – meaning back-and-forth communication – into the Logan Act. There is no such requirement in the Act. He follows this unwarranted interpolation with an even more unfounded one – that the Logan Act requires “negotiation” between an American and an agent of a foreign state. This is pure invention. Of course, courts sometimes impose on legislative language that on its face appears overbroad what’s called a “limiting construction.” That is, courts try to interpret statutes in a way that avoids unconstitutionality and if statutory language is facially overbroad, courts will look at legislative intent, common usage, and previous court cases on the same or similar statutes and try to narrow the focus of the statute to a constitutionally tolerable degree. But the Logan Act has little legislative history. What it does have doesn’t lend itself to Mr. Abramson’s construction. And, since the statute has only been charged twice and never produced a judgment of guilty, there is no meaningful body of case law that could be used in creating a sound limiting construction – certainly not the one that Mr. Abramson just makes up out of whole cloth.
2) His argument that the Logan Act, first passed in 1799, would have been repealed long since by Congress if it were not a valid statute is just bunk. Federal and state codes are chock full of old statutes that were never used to any effect or have fallen out of use because they are legally doubtful. Congress does NOT routinely comb the federal law looking for such relics and repealing them. That Mr. Abramson would even suggest such a thing tells you that he is either not a very good lawyer or he is willfully spinning tales to the credulous non-lawyer public.
There has been a serious effort by two very good legal academics – Eric Posner and Dan Hemel of the Univ of Chicago – to fashion a limiting construction of the Logan Act. Their work, which appears on the LawFare blog, is careful, learned, and worth reading. https://lawfareblog.com/logan-act-and-its-limits
I will tell you that I think Posner and Hemel are wrong, and I hope to post an explanation of why later today. But at the least, theirs is an opinion that should be taken seriously.
I might add that I had never heard of Mr. Abramson before your comment. I looked him up and found that, although he has a law degree from Harvard and apparently practiced for awhile, he’s a creative writing teacher in New Hampshire. He is apparently making a place for himself on social media by Tweeting and blogging anti-Trump stuff that sometimes may be sound, but is often wish-fulfillment fantasies for the liberal left. Here’s a recent article on Slate that describes his approach. https://slate.com/news-and-politics/2017/12/sharing-seth-abramson-not-once-not-ever.html
I think that, in general, it would be prudent to avoid relying on Mr. Abramson’s analysis of serious and complicated issues.
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