Amid all the consternation over the letter that 47 Republican Senators wrote to the leaders of Iran in order to scuttle a nuclear arms deal, there was heavy speculation about a possible violation of something called the Logan Act. While the White House was happy to stand by and watch the debate over this arcane and never-used law (save a single indictment that was never pursued), I noted that the letter clearly violated another piece of legislation you might have heard of: the U.S. Constitution.
Over the weekend, a fairly senior administration official agreed with me. In an interview with CBS News, Kerry was asked if he would apologize to the participants of the P5+1 negotiations over the letter that freshman Sen. Tom Cotton authored, and Kerry's response was rather emphatic:
"I'm not going to apologize for the unconstitutional, un-thought-out action by somebody who's been in the United States Senate for 60-something days. That's just inappropriate."
My thoughts exactly, if "inappropriate" means "some bullshit." While the Logan Act is a malleable law that lets politicians throw treasonous stank on an opponent without actually doing anything about it, violating the U.S. Constitution is another matter, entirely. While Tea Party types like to brandish their pocket copies at everything President Obama does, but when you're the President, and someone actually does violate your constitutionally enumerated powers, you can't just do an angry cable hit.
That's probably why I couldn't find any takers, among White House officials I spoke to Monday, who wanted to weigh in on Kerry's remark. At Tuesday's daily briefing, I asked Press Secretary Josh Earnest about Kerry's remark, and while he wouldn't deliver a legal opinion, he seemed to indicate that the letter was, perhaps, a violation in spirit:
Josh Earnest: "My sense is that he was referring to the fact that, for centuries, the responsibility of the president of the United States to conduct foreign policy for the country is a well-established principle. It's one that's described in the Constitution, and it's one that presidents in both parties have abided by."
Tommy Christopher: "Was it more a violation in spirit than letter, maybe?"
Josh Earnest: "Maybe so. I'm not an attorney, so it's hard for me to draw those conclusions."
If the letter was, indeed, unconstitutional (and I believe it clearly was), then the Obama administration should do something about it, not just for the sake of these negotiations, but for future presidents as well. A good start would be to seek an injunction against the 47 who signed the letter, ordering them not to interfere further. It would be fascinating to see if any of them would fight such an injunction, and risk having its principles validated by the Supreme Court.
Of course, the reverse applies: picking this fight in court could also serve to codify the acceptability of the Republicans' actions, and invite a maelstrom of interference in foreign policy, further testing the limits. Politically, there's no reason for the Obama administration to take such a risk, since the Republicans have been taking such a beating over this anyway. Challenging the letter in court would not be a slam-dunk, while the current political backlash is much more of a sure thing.