Last week, I wrote here and in Slate about the Logan Act, the 1799 statute that criminalizes certain kinds of contacts between U.S. citizens and representatives of foreign governments. I argued that the Act is of doubtful constitutionality and that the Mueller team would be extremely unwise to base any indictment on it.
For those interested in more on the Logan Act, I commend you to two recent articles. The first, by history professor Stephen Mihm of the University of Georgia, details the occasions on which the Act has been used to threaten persons who have made foreign contacts, but notes that it has never been the basis for a successful prosecution. He concludes, as I did, that Robert Mueller would be well advised to steer clear of the Logan Act. See https://www.bloomberg.com/view/articles/2017-12-08/the-logan-act-never-used-often-abused.
The second article worth reading is by Professors Eric Posner and Dan Hemel. Regular readers will recall that my piece from last week began as a response to Posner and Hemel’s claim in the New York Times that the Logan Act remains valid and is a plausible vehicle for a modern prosecution. In this second piece on the blog LawFare, Posner and Hemel expand on their earlier argument by laying out what lawyers call a “limiting construction” of the Logan Act that they contend would insulate it against claims of constitutional overbreadth. Because Posner and Hemel are first-rate legal scholars, their piece is carefully researched and elegantly written. It repays reading.
That said, I fear that I am unconvinced by their argument. Among other considerations, there are far too many aspects of the Logan Act’s language that would require judicial limitation in order to render the statute acceptably specific. I hope to explain my disagreement with Posner and Hemel in detail in an upcoming post.