Before this week, the Logan Act was something you would disgustedly tell Hugh Jackman to drop, but as of Monday morning, it is the hot arcane law du jour. As a douchier writer might put it, the Logan Act is having a moment due to the 47 Republican senators who decided to send the Iranian ayatollahs a note explaining how their negotiations with President Obama are a vain waste of time. The backlash has been fierce, and has centered on the idea that their open letter could be construed as a violation of said act, a notion that the White House is not breaking its neck to dispel.
In fact, they seem to be dating the Republicans to step even closer to the line they may have already crossed. At Monday’s White House daily briefing, Press Secretary Josh Earnest basically told them to quit being pussies and spit it out:
If they’re trying to undermine this agreement and not allow a diplomatic resolution to be arrived at, then they should just be — A, they should be honest about that. The letter is couched in all these terms about trying to provide a civics lesson to Iran’s political leadership. But the fact is they’re against a deal. If they’re so ashamed of that position, why wouldn’t they advocate it publicly?
Well, one possible reason is that they ran this letter by some lawyers and decided that this is precisely as cute as they should get. But Earnest is probably right, too, they are pussies.
As much fun as we’re all having beating up on Republicans with the Logan Act, the law itself is actually kinda bullshit (although these senators violated something slightly more substantial, a little thing called the U.S. Constitution). The Logan Act was enacted in a fit of pique at Dr. George Logan’s attempt to avert a war with France (which we did), and has since only ever been used to coat political opponents in a thick treason-y film.
Case in point: the late President Ronald Reagan, who, in 1984, accused Democratic presidential candidate Rev. Jesse Jackson of violating the act. It seems that Rev. Jackson committed the horrible treason of securing the release of 23 political prisoners from Cuba. See, Cuba was our enemy before Obama won the Cold War last year. During a round of interviews with local reporters, Reagan invoked the Logan Act to criticize Jackson’s efforts:
”It is a case that there is a law, the Logan Act, with regard to unauthorized personnel, civilians, simply going to – or citizens – to other countries and, in effect, negotiating with foreign governments. Now that is the law of the land.”
Reagan was also trying to wave Jackson off from trying to negotiate for the release of Soviet dissident Andrei Sakharov, citing “things that might be going on in the quiet diplomatic channels that we have going forward,” secret plans that apparently never worked out, as Sakharov was eventually released from exile without help from Reagan.
Of course, Reagan forgot to mention to that reporter that Rev. Jackson had consulted the State Department prior to the trip:
Mr. Jackson said he had communicated with the State Department before the six-day trip and had simply made a ”moral appeal” there, rather than engaging in negotiations. He said he would not have been able to return with the prisoners had the State Department not processed the visas and allowed a Cuban airliner carrying about half of them to land in Washington.
In reporting on Reagan’s remarks, The New York Times hit on an unsurprisingly familiar motivation for the attack, noting that Reagan had previously praised Jackson’s diplomatic efforts with Syria, when there was no presidential campaign, as opposed to the political terrain in July of 1984:
White House officials denied that political campaigning was the main motive, but the President, in opening a three-day national trip, courted a bedrock part of his constituency through the day, praising the ”good sense” and ”lilting cadence” of Southerners. White House strategists are counting on another strong showing by Southern whites for Mr. Reagan to help offset increased Democratic registration stirred in part by Mr. Jackson’s influence among black voters.
So, that’s progress. In 1984, Reagan used the Logan Act to attack a black presidential candidate, and now, Republicans are violating (maybe) the Logan Act to attack the first black president. Who won twice.
As the Congressional Research Service pointed out in their 2006 report on the Logan Act, it’s a mixed blessing that the law has never been used, because the law’s broad language makes it easy to accuse people of, but tough to survive a judicial challenge. Their solution, though, will give you the giggles (emphasis mine):
Although it appears that there has never been a prosecution under the Logan Act, there have been several judicial references to it, indicating that the Act has not been forgotten and that it is at least a potential point of challenge that has been used against anyone who without authority allegedly interferes in the foreign relations of the United States. There have been efforts to repeal the Act, one of the most significant occurring in the late 1970’s. For example, Senator Edward Kennedy proposed in the 95th Congress to delete the Logan Act from the bill to amend the United States criminal code.43 Senator James Allen insisted on reenacting the Act in exchange for promising not to prolong debate over the bill, and Senator Kennedy agreed to this. However, since the House was unable to consider the criminal reform bill in the 95th Congress, the possibility of deleting the Act in a conference committee was eliminated. It is possible, nevertheless, that the issue of whether the Logan Act should remain will be considered by another Congress.
In fairness, they never met this Congress, but even so, the Logan Act is much more useful where it is now, hanging on the wall like those decorative Samurai swords, looking scary but never actually being used.