The open letter that 47 Republican senators wrote to the leaders of Iran was the hot topic at the White House on Monday, drawing strong words of condemnation from Press Secretary Josh Earnest at the daily briefing, and shortly thereafter, a stinging assessment from President Obama that echoed some of what Earnest had said. However, one of the most intriguing subplots surrounding the letter, the possibility that it violated the Logan Act, is likely to be left in the holster by the Obama administration.
Following his meeting with European Council President Donald Tusk, the President took one question from the press pool, obviously with some anticipation of the subject, and came right up to the line of calling the Republicans collaborators with the Ayatollahs:
“I think it is somewhat ironic to see some members of Congress wanting to make common cause with the hard-liners in Iran. It is an unusual coalition. I think what we’re going to focus on is actually seeing whether we can get a deal or not. And once we do, then we’ll — if we do, then we’ll make the case to the American people, and I’m confident we’ll be able to implement it.”
It was a line that Earnest used almost verbatim during the briefing minutes earlier, a sign that this issue had been carefully messaged in advance. But while the letter clearly veers toward a violation of the Logan Act, as Mike Luciano pointed out earlier, that issue was clearly not part of Earnest’s preparation, and he wasn’t asked about it at the briefing. That alone isn’t indicative that the White House intends to leave the Logan Act issue alone, but Earnest also aimed his criticism at the ambiguous language in the letter, which doesn’t mention any specifics of a deal, nor any alternative to one, and dared Republicans to come out and say they oppose a diplomatic solution to Iran’s nuclear ambitions, and accused the senators of “seeking to establish a back-channe with the hardliners in Iran.”
It is on these key points that a prosecution under the Logan Act would be difficult. Here’s the part of the act in question:
“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.”
As Earnest pointed out, the language of the letter is ambiguous enough that a theoretical defense lawyer could argue it is simply a helpful list of (not accurate) facts, and the fact that it’s an open letter would make proving their intent somewhat more difficult. Of course, a theoretical prosecutor could also make the argument that the letter is essentially the Republicans’ way of saying “Nice nuclear deal you got there. Be a shame if anything happened to it.” It is, at very least, a clear violation of the spirit of the law, and given the precedent being set, I’d be happy to take a chance on such a prosecution.
However, such an uphill fight would not be worth the gamble, politically, and under the current set of facts, the White House is getting the best of both words. Earnest and President Obama are going right up to the line with their criticism of the move, and people like Senate Minority Leader Harry Reid are dancing right on it. The debate helps them more than leaning into the specific accusation ever would. If they say they’re looking into it, then they have to do something about it. If they say it’s not a violation, then it kills the story. Better to let everyone else talk about it.
And talk about it, they should, because this sets a dangerous precedent that could well leave us with little choice but another war.
Update: At Wednesday’s daily briefing, Fox News’ Kevin Corke became the first reporter to ask the White House about the Logan Act in public. As expected, Press Secretary Josh Earnest punted to the Justice Department, after throwing in a bit of the “I’m just an old country press secretary” routine:
“Well, Kevin, I know that this is something that a lot of commentators have speculated on, including some with a lot more legal knowledge than I do,. For a determination like that, I’d refer you to the Department of Justice, and ultimately it would be their responsibility to make that kind of determination. But again, I know that there’s been a lot of speculation about this, but I’m not aware of any conversations about the Logan Act, and its relation to this specific matter, that have taken place here at the White House.”