Applicability of the Logan Act of 1/20/1799 If We Lobby Foreign Officials

[solutions]

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Subject: Applicability of the Logan Act of 1/20/1799 If We Lobby Foreign Officials
From: Solutions
Date: Wed, January 11, 2023 8:27 pm PST
To: ReadingLiberally-SaltLake@johnkarls.com
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Dear John,

I just happened to notice your Suggested Discussion Outline and was intrigued by its last sentence which ends with –

“My preference would be a ‘Working Group’ not only because….. BUT ALSO SO THAT POSSIBLE APPLICATION OF THE LOGAN ACT OF 1/30/1799 CAN BE REVIEWED VIS-À-VIS ENTREATIES TO FOREIGN LEADERS (off-hand, I would guess it is not applicable because the Biden Administration has NOT announced a policy of opposing additional Abraham Accords).”

Could you please elaborate?

Your friend,

Solutions


---------------------------- Original Message -----------------------------
Subject: Re: Applicability of the Logan Act of 1/20/1799 If We Lobby Foreign Officials
From: ReadingLiberally-SaltLake@johnkarls.com
Date: Wed, January 11, 2023 10:32 pm MST
To: Solutions
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Dear Solutions,

Thank you very much for your e-mail.

When I wrote that sentence, I had forgotten that we faced the Logan Act issue when we sent our 3/15/2022 letters to the Secretary General of NATO and the President of the European Union urging support for Ukraine following Russia’s invasion on 2/24/2022 -- a mere 3 weeks earlier.

[Please see those letters available for download as Adobe.pdf files at viewtopic.php?f=23&t=2176&sid=622d222ff ... cfde87a6f1.]

Our legal analysis began with an examination of the statutory language of the Logan Act which is currently found at 18 U.S. Code Sec. 953 and which says --

“Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, 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, shall be fined under this title or imprisoned not more than three years, or both. This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.”

By way of background we noted that even though it was enacted more than 223 years ago (1/30/1799), only two people were ever indicted (1802 and 1852) and neither was convicted, though it still creates headlines, such as -

(1) Its reported use as leverage against Lt. Gen. Mike Flynn, Trump’s first selection as National Security Adviser, who engaged in conversations with representatives of foreign governments before Trump’s inauguration – WHICH ALWAYS HAPPENS WITH EVERY INCOMING ADMINISTRATION.

(2) Its NOTORIOUS NON-USE when Trump pulled out of the JCPOA (aka Iran Nuclear Deal) and John Kerry, Obama’s second Secretary of State (2/1/2013 – 1/20/2017) met constantly with Iranian leaders during the Trump Administration and “assured” them that Trump would be defeated in 2020 and the Democrats would immediately re-enter the JCPOA. [“Notorious” non-use because Kerry’s actions were NOT precedented, they were squarely “in the cross hairs” of the Logan Act, they were widely commented upon in the media (including whether they comprised “treason”), and because no action was ever taken against Kerry.]

Our legal conclusion was that –

(1) Neither NATO nor the E.U. is a “foreign government” or an “officer or agent” of a foreign government and any attempt to claim that they are would render the Logan Act as “void for vagueness” if its terms were so stretched.

(2) MORE IMPORTANTLY, our letters did NOT involve any “disputes or controversies” between the U.S. and NATO or the E.U. and they did not attempt to “defeat the measures of the United States” since the U.S. itself was boycotting Russian oil & gas and there was no reason to suppose that the U.S. would object to NATO and/or the E.U. taking similar action.

In the present case involving additional Abraham Accords, the Biden Administration has not even inkled that it opposes Abraham Accords with additional countries such as Saudi Arabia.

And if the Biden Administration attempted to invoke the Logan Act, it would be interesting how they would try to justify their as-yet-to-be-announced opposition to Abraham Accords with additional countries.


John S. Karls
JD, Harvard Law School, 1967
Who’s Who in American Law, 1988-2003
Who’s Who in America, 1988-2003
Who’s Who in The World, 1994-2003