The Slatest

The Law Tom Cotton Supposedly Violated Is a Joke

Tom Cotton

Photo by Justin Sullivan/Getty Images

The open letter Tom Cotton and 46 other Republican senators sent to Iran was inappropriate, reckless, and borderline unconstitutional. Thankfully, it appears likely to backfire as the controversy has reduced the already slim chance that Senate Democrats might overturn a presidential veto on new Iran sanctions. But Democrats have never met a Republican unforced error they couldn’t screw up. They’ve been quick to push their luck, going overboard by labeling the signatories as “traitors” and trying to make “Tehran Tom” a thing.

Many liberals have also glommed on to the Logan Act, a 200-year-old law that states:

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.

A petition demanding that the Obama administration file charges against the offending senators under the Logan Act racked up more than 100,000 signatures in less than a day, meaning that the administration will have to respond to it. They will almost certainly not act on the request. As well they shouldn’t, because the Logan Act is a joke.

The law was passed in 1799 in response to the actions of George Logan, a Quaker doctor from Pennsylvania and friend of Thomas Jefferson who took it upon himself to travel to France to negotiate on behalf of the United States without authorization from the John Adams administration. (This was at a time of high tension between the U.S. and France.) According to a Congressional Research Service history of the law, no one has ever been prosecuted under it. The CRS could only find one example of an indictment—a Kentucky farmer who was charged in 1803 after writing a newspaper article proposing a new western American nation allied with France—but that whole issue was rendered moot by the Louisiana Purchase. The law has been cited in passing in a number of court rulings over the years, but its main purpose has been to serve as a threat against Americans who meet with officials from hostile governments.

Public figures who’ve been accused of violating the Logan Act over the years include Sen. George McGovern for meeting with Cuban officials, Jane Fonda for her famous visit to North Vietnam, civil rights activist Stokely Carmichael for his trips to Vietnam and Cuba, Ross Perot for his efforts to find missing U.S. servicemen in Southeast Asia, former House Speaker Jim Wright for his relations with Nicaragua’s Sandinista government, and the Rev. Jesse Jackson for his freelance diplomacy with the governments of Syria, Cuba, and Nicaragua. Even Richard Nixon was accused of violating the act with a post-presidential trip to China. After each of these cases, critics suddenly rediscovered the Logan Act, but none of the alleged violators was ever formally charged.

More recently, Republican Rep. Steve King accused former House Speaker Nancy Pelosi of violating the Logan Act by meeting with Syrian President Bashar al-Assad against the wishes of the Bush administration in 2007. (With the notable exceptions of Nixon, Perot, and the 47 Republicans, alleged Logan Act violators tend to be liberals and leftists.)  

Written in an era when diplomacy was conducted by sailing ship and accreditation was difficult to verify, the Logan Act today seems vague and overly broad. Interpreted literally, it could criminalize a wide array of communication between private U.S. citizens, organizations, or companies and foreign governments—there aren’t too many international “disputes or controversies” that the U.S. government isn’t somehow involved in. If the Logan Act were ever actually applied, it’s easy to imagine a legitimate First Amendment challenge. There have been a number of suggestions to amend or eliminate it over the years, most notably by Sen. Ted Kennedy, who tried unsuccessfully to get it repealed in the late 1970s.

A 200-year-old law that no one has ever been prosecuted for violating and is only ever used as a rhetorical cudgel is probably one that shouldn’t still be on the books at all. Idiotic as the letter was, don’t expect Cotton and crew to be prosecuted for it. And given many of the figures who have been accused of Logan Act violations, liberals should be happy about that.