Tag Archives: Edmund Randolph

The Logan Act: A Derelict Statute Robert Mueller Should Shun

06 Wednesday Dec 2017

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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.

Frank Bowman

“Standing” in the Emoluments Lawsuits Against Mr. Trump: An Answer to a Reader’s Question

15 Wednesday Nov 2017

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Reader Richard Weisfeld has asked a question that may puzzle others.  He writes:

I’d be thankful if you could offer some insight: I’ve read about “standing”, a concept I generally do understand, even as a layman, in regard to the foreign emoluments clause. Specifically, I read that Washington DC hotel owners needed to bring suit, because they had standing, having lost business to the Trump Hotel. Where does the idea come from that this clause was somehow in the constitution to protect businesses from the president and unfair competition, as opposed to being there to protect every American citizen, and the republic itself, from corrupt presidents, or presidents who would be swayed by foreign powers or entities, to take actions against the interests of the United States? How is that not the obvious primary purpose for the clause? How does every citizen not have standing? There must be some historic line of reasoning, but I have not heard one explained or reported.

This is a great question, and resolving it presents perhaps the largest challenge to the plaintiffs in the emoluments lawsuits.  The short answer runs like this —

Leaving the emoluments clauses to one side for a moment, federal courts only hear cases in which there is an actual “case or controversy” — a concrete real world dispute in a matter over which the particular court has “subject matter jurisdiction” and that can be resolved by an order from the court, whether it be a finding of guilt in a criminal case, liability in a civil case, or an order of injunctive relief compelling somebody to do something.  Federal courts do not render “advisory opinions” — legal opinions on a matter that has not actually manifested itself in a concrete real world dispute.

Therefore, the first hurdle any plaintiff in federal court must overcome is to demonstrate that he, she, or it has an actual stake in a real world dispute. This is a problem in the emoluments clause suits against Mr. Trump. As Mr. Weisfeld points out, in a general sense, all U.S. citizens have an interest in ensuring that the president and all other federal officials adhere to the constitution. But the federal courts long ago decided that that sort of generalized interest in constitutional order is customarily not sufficient to grant standing. Some more direct impact on the plaintiff is required. Hence, the hotel owners — the argument being that Mr. Trump is violating the foreign emoluments clause by drawing foreign government guests to his Washington hotel and thus causing a discrete injury to other hoteliers who would otherwise get the business.

I am not an expert on standing in federal civil actions, and thus have no intelligent opinion about this approach. I have to say, however, that it feels thin to me. Better informed observers than I have opined that this may prove to be the Achilles heel of the plaintiffs’ case.

Even if the courts grant standing to some of the emoluments plaintiffs, and if the courts conclude that the president is covered by the foreign emoluments clause, and if the courts conclude that some kinds of commercial transactions qualify as prohibited emoluments, there remains the question of remedy. Perhaps a court could order a president to disgorge payments received as prohibited foreign emoluments. Perhaps it could issue an injunction ordering him to cease engaging in activities that violated the clause. So, at best, the current private lawsuits annoy Mr. Trump, strip him of some cash, and prevent him from making some more in the future. But even if a court decides to go that far, it cannot order the president to vacate his office.

If that’s right, you may well ask, “Then what good is the foreign emoluments clause?” The answer, I think, is that the Framers plainly believed that a president could be impeached for a violation of the clause. Edmund Randolph, a member of the Virginia delegation to the Philadelphia convention, said in the later Virginia Ratifying Convention:

There is another provision against the danger, mentioned by the honorable member, of the President receiving emoluments from foreign powers. If discovered, he may be impeached.

Thus, it may well prove that there is no meaningful remedy available in courts for presidential violations of the emoluments clauses, and that the only meaningful remedy for such a violation is to impeach, convict, and remove the president under Article II, Section 4.

Frank Bowman

Foreign Emoluments, the President & Professor Tillman

27 Friday Oct 2017

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By Frank Bowman

Impeachment aficionados will be aware that a group calling itself Citizens for Responsibility and Ethics in Washington (CREW) has filed suit in the Southern District of New York seeking a declaration that Mr. Trump’s copious and lucrative business transactions with foreign governments and entities violate the Foreign Emoluments Clause of Article I, Section 9, which reads as follows:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

Leaving to one side the question of whether the CREW plaintiffs have standing to bring the action, the central dispute is whether money paid to a president as a result of commercial transactions is a prohibited emolument.

As discussed on this site earlier in the year, Seth Barrett Tillman, an industrious professor from the National University of Ireland – Maynooth, has opened a second front in the emoluments battle with his claim that the foreign emoluments clause doesn’t apply to the president, or indeed to any elected federal official such the vice-president or members of congress.  In recent weeks, Professor Tillman has won two victories, one minor and another potentially less so.

His petit coup, recounted in a recent New York Times article, involved a dispute over the provenance of certain documents allegedly signed by Alexander Hamilton.  To make a long story short, in 1792, the Senate asked Hamilton, then the Secretary of the Treasury, to provide a list of all salaries and emoluments of “civil offices under the United States.” In a letter, Hamilton provided a list that included executive branch appointees, but not the president or vice president. Prof. Tillman contends that this letter is proof that Hamilton believed that the president is not a “person holding any Office of Profit or Trust under [the United States]” for purposes of the foreign emoluments clause.

You may think that this is a pretty thin argument (and as discussed below, it is), but a group of distinguished legal historians led by Professor Jed Shugerman who rejected Tillman’s interpretation in their amicus brief made an embarrassing mistake.  They pointed to a later 1793 document in government archives which does list the president and vice-president as holding civil offices under the United States and which appears to bear Alexander Hamilton’s signature.  They trumpeted this second document as conclusive disproof of an important prong of the Tillman position, only to have Tillman show that the second document almost certainly was not signed by Hamilton, but by some anonymous government functionary. Red faces abounded.  And the legal historians (very graciously) issued apologies for impugning the integrity of Tillman’s archival research.

Professor Tillman’s potentially more significant victory came in a letter from the Department of Justice to the judge in the CREW lawsuit in which DOJ stated that it is not conceding that the Foreign Emoluments Clause applies to the president.  This is notable because the Department’s position has traditionally been to the contrary, as most recently embodied in a 2009 memo from the Office of Legal Counsel opining that the president is “surely” covered by the clause.  So far, the Department has not reversed its 2009 opinion or affirmatively pressed the claim of presidential exemption, but the letter opens that possibility.

So does Tillman have a good argument?

In a word, no.

Tillman’s claim that the Foreign Emoluments Clause doesn’t include the president is based on two doubtful premises.

First, he contends that the phrase “office of profit or trust under [the United States]” doesn’t include the president because, he says, in English practice, the phrase “office under the Crown” referred not to the King or to elected offices, but only to appointed offices whose authority derived from the appointing hereditary sovereign.  But in the United States, the sovereign is not the president, but the people as a whole, or if one wants to take a strongly federalist view of the matter, the union of states represented by the elected central government.  All American officeholders — including the president — hold office “under the United States” because they derive authority from, and are not the sources of, the general government’s democratically legitimated sovereign power.

And even if this were not self-evidently the case, there is no plausible founding-era evidence that the drafters or ratifiers of the constitution viewed the phrase “office of profit or trust under” the United States in Professor Tillman’s peculiarly Anglophile sense.  Indeed, as the legal historians noted, the only direct expression of opinion by constitutional founders expressly endorses the view that the president is covered by the Foreign Emoluments Clause. During the Virginia ratifying convention, Edmund Randolph and George Mason plainly stated that presidents are bound by the clause, and Randolph, who would become Washington’s attorney general, went further to declare that a president who received foreign emoluments could be impeached for doing so.

The sole statement from a founding-era figure to which Tillman can point is the Hamilton response to the Senate inquiry.  But, as the legal historians convincingly explain, the Senate was asking for an accounting of “civil offices” and their salaries for a particular reason.

The request came in 1792, at the end of President Washington’s first term and towards the close of the second session of Congress. The term “civil offices” is distinct from the phrase in the Foreign Emoluments Clause (“office of profit or trust under [the United States]”), but matches the language of Article I, Section 6:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The most plausible explanation for the Senate request is that the Senate wanted to know which “civil offices” federal legislators would be barred from accepting, and which offices those standing for election to Congress for the first time in 1792 would be obliged to surrender if elected.  The presidency, being elective rather than appointive and thus irrelevant to the point of the inquiry, Hamilton did not include it.  What we can be absolutely sure of is that the Senate did not ask for, and Hamilton did not give, an opinion on whether the president is covered by the Foreign Emoluments Clause.

Before moving to Tillman’s next point, it is worth pausing on Article I, Section 6, to consider one of the many unpalatable implications of his theory.  If he is right and the phrase “office under the United States” does not include the president, then Article I, Section 6, does not bar the president from serving as a member of Congress while also serving as president. Which is ridiculous inasmuch as it would utterly destroy the constitution’s separation of powers.  But it is the unavoidable implication of Tillman’s argument that the framers used “office under the United States” as a term of art excluding the president.

Second, and this is the real meat of Tillman’s argument, he points to a handful of incidents in which early American presidents accepted ceremonial gifts from foreign governments or their representatives.  Washington accepted a key to the Bastille from the Marquis de Lafayette and from Louis XVI a portrait of that ill-fated monarch. Jefferson accepted a bust of Czar Alexander I.  Madison accepted a pair of pistols from a South American revolutionary, which he apparently passed on to his successor, James Monroe.  Tillman argues that these gifts prove that Washington, Jefferson, Madison, and Monroe all believed that the Foreign Emoluments Clause didn’t apply to the president, and he contends that these early incidents outweigh the roughly two centuries of subsequent practice in which both presidents and congress expressly recognized the applicability of the clause to the presidency.

Professor Tillman is deadly earnest in professing the interpretive importance of these incidents, but the moment one takes a deep breath and steps back to gain perspective, it’s plain that there’s little substance to the argument.  In the first place, as I wrote several months ago:

After all, the point of the [Foreign Emoluments] clause was to prevent foreign powers from seducing American officials away from their proper loyalties with valuable bribes.  The idea that anyone gave a moment’s thought to the idea that Washington or Jefferson would sell out the country because of a rusty old key or the marble visage of a member of the notoriously unattractive Russian royal line is just silly.  Accordingly, it is entirely unsurprising that Washington and Jefferson accepted the objects as a matter of courtesy and quite unlikely that anyone even thought about constitutional ramifications of doing so.

But the more important, and I think dispositive, point is this: If Tillman is right, then the framers wrote into the constitution a provision that would prohibit, say, the U.S. ambassador to France from accepting a jeweled snuff box from the French government, but would allow the King of France to award the President of the United States a title of nobility accompanied by a grant of land and revenues.  According to Tillman, King Louis XVI, rather than sending George Washington a portrait, could have tried to secure U.S. opposition to the Revolution of 1789 by declaring Washington the Duc de Haiti entitled to a percentage of the French crown’s revenues from that rich, sugar-producing colony.  Or George III of England could have begun the process of seducing America back into the British orbit by bestowing on Vice President Aaron Burr (a man notoriously open to extra-curricular peculation) the title of Baron of Barbados, with ownership of several large and lucrative sugar plantations.

These hypotheticals sound absurd to modern ears, but the problem of divided loyalties and overt corruption created by awards of foreign titles, lands, and revenue to heads of state and powerful notables was endemic to Europe from the Middle Ages through the 18th Century and would have been intimately familiar to the framers.

For centuries, English kings held French titles of nobility which, depending on the period, gave them French lands, which they held as feudatories of the French king, or even claims on the French crown.  Untold thousands of Englishmen and Frenchmen died in the wars fought over those territorial and dynastic claims. George III, the boogieman of the revolutionary generation, was simultaneously King of England, King of Ireland, and Duke and prince-elector of Hanover. And English critics were always troubled by the disposition of kings of the Hanoverian line to be drawn into German intramural squabbles. Phillip II was at various points King of Spain, Portugal, Naples, and Sicily, and Duke of Milan and lord of the seventeen provinces of the Netherlands. His far-flung dynastic commitments and devout Catholicism were the impetus for decades of near-constant warfare.  Endless additional examples could be cited, but the point is that the last thing the American framers would have wanted is an elected chief executive whose judgment might be distorted by enjoyment of an hereditary title or estate granted by a foreign power.

The even more acute problem that plainly concerned the founding generation was the seduction of both heads of state and lesser notables by rewards (or bribes, depending on your point of view) from foreign powers.  The practice was such a common aspect of European diplomacy as to scarcely merit remark on that side of the Atlantic. For example, the English Duke of Marlborough, Winston Churchill’s famous ancestor, was rewarded for his military successes with the title of Prince of the Holy Roman Empire and Prince of Mindelheim (a German principality). The entire European ruling class was entangled in a web of conflicting loyalties.

The American founders not only rejected hereditary aristocracy as a feature of the American future, but recoiled from the prospect of royal briberies.  In their brief, the legal historians note that Gouverneur Morris expressly cited the secret 1670 Treaty of Dover in which the King of England was induced to join France in its war against Holland both by providing him with a French mistress and paying him large sums to eliminate his debts.  Said Morris:

Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard agst. it by displacing him. One would think the King of England well secured agst. bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV.

Morris was not discussing the foreign emoluments clause, but the passage reveals the founders’ acute awareness of the dangers of foreign payments to a head of state.  And it casts a revealing light on Professor Tillman’s primary defense against the practical absurdity of his position.  Tillman contends that it would have made sense to the framers to exclude the president from the foreign emoluments clause because a failure to do so would subject the country to diplomatic embarrassments attendant upon a constitutionally-mandated policy against the common European practice of accepting token diplomatic gifts.  But the whole point of the Foreign Emoluments Clause was to set the United States on a new path, free of the endemic corruption of European practices of the time.  To suggest that a fear of transitory diplomatic embarrassment would move them to gut this objective by permitting the most powerful officers of the United States to accept foreign titles and money is, frankly, absurd.

In the end, Professor Tillman deserves the respect due a diligent and inventive controversialist.  But his argument cannot stand up to serious examination.