09 Mar GOP Iran Letter Might Be Unconstitutional. Is It Also Criminal?
I’ll one-up Julian’s post below on Tom Cotton’s letter to the leaders of Iran admonishing them that any agreement entered into today could be reversed by Obama’s successor. It appears unprecedented for a group of opposition members of Congress to engage in such a communication.
It may also be criminal. The 1799 Logan Act provides that:
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.
Most putative Logan Act violations violate the spirit and structural foundations of the Logan Act (John Boehner’s invitation to Benjamin Netanyahu supplying a recent example). This one seems to squarely satisfy its elements. We have:
- a correspondence with a foreign government (whether direct or indirect, in the form of an “open letter”, matters not),
- without the authority of the United States (it enjoys no imprimatur from the executive branch nor, for that matter, from Congress as an institution),
- with the pretty clear intent “to influence the measures or conduct of” the government of Iran in relation to a controversy with the United States.
Some might debate the last prong, but what other motivation could the letter have than to persuade Iranian leaders to back off a deal for fear that it will hardly be worth the paper it’s written on?
Now I know as well as the next guy that there’s been no Logan Act prosecution in the modern era. I also understand that in the wake of globalization national legislators routinely interact with foreign government officials. Iran is probably sophisticated enough about US constitutional law to the point that the letter’s substance isn’t news to them. But an initiative like the Cotton letter seems to cross a line, and perhaps it should be slapped back. How will contested foreign policy initiatives ever get off the ground if whoever’s out of the White House can meddle so brazenly? We have clearly left the era in which politics stopped at the water’s edge.
UPDATE: Steve Vladeck has this post up at Lawfare arguing against the Logan Act’s viability in this context. I take the point on desuetude. A law that lies around unused for a protracted period at some point becomes not-law (think jaywalking). Steve also argues that as a legislator, Cotton may have been acting with the “authority of the United States.” I can’t agree on that point. If anything, Cotton’s status as a senator makes the offense a greater one, because it’s more likely to be taken seriously and do real damage to national foreign relations.
As for the First Amendment, there are certainly First Amendment implications here. The Cotton letter involves speech that would be fully protected in the ordinary domestic context. But the Constitution in general and the First Amendment in particular are seen through different lens when it comes to foreign relations. Does that mean that the Logan Act would withstand a First Amendment defense? Not necessarily. But the answer is not so clear cut as it would otherwise seem.
None of this is to say that there will or even should be a Logan Act claims against Cotton and his collaborators, and the factors that Steve highlights plainly contribute to non-prosecution as a prudential matter. But the above-the-fold attention given to the Cotton letter shows that there is something out of the ordinary going on here. If he had said the same things on CNN no one would have paid any attention; it would have been business as usual. Not so as addressed to the Iranian leadership.