Since my post earlier in the week about Speaker Pelosi's apparent conduct of foreign policy parallel to the President's, a number of commentators (including some who emailed me) have suggested that Pelosi not only acted improperly but illegally. Specifically, they suggest that she may have violated the Logan Act. It provides in relevant part:
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.
Here I'll just note four issues:
1) There is zero chance that Pelosi will actually be prosecuted.
2) In the hypothetical world in which she were prosecuted, she could claim:
a) That as Speaker, she had "authority of the United States." (This strikes me as a weak argument because in matters of diplomatic relations, the executive branch is the relevant authority.)
b) Her intent was to influence Syria's conduct with respect to Israel, not the United States. (This strikes me as a good argument, because it appears to be true. Her trip was pre-blessed by Israeli PM Olmert. The Administration might claim that Pelosi's trip nonetheless was aimed to "defeat the measures of the United States," namely the measures aimed at isolating Syria, but could Pelosi be shown to have had the "intent" to do so? Perhaps. Her aim was in part to engage Syria, as recommended by the Hamilton/Baker report, which does sound like the opposite of isolating Syria.)
c) She was on a fact-finding mission. (Pelosi has said as much, and members of Congress are, as I noted in my last entry on this subject, entitled to go on fact-finding missions without the President's blessing. But if she was on a fact-finding mission that also included violations of the Logan Act, she would still be guilty.)
3) As the Speaker and others have noted, Republican members of Congress have also been to Syria, including this past week, without incurring the wrath of the Administration. One could, in theory, interpret the Administration's silence with respect to these other freelancers as amounting to a delegation of "authority" to them to conduct foreign policy, but that would be a strained reading of the statute in the interest of sustaining a selective prosecution. If it undermines official efforts of the U.S. to isolate Syria for a Democratic member of Congress to meet with Bashar Assad, then a meeting with a Repubican member of Congress has the same effect. There may be circumstances in which a President could legitimately authorize a member of his own party in Congress to conduct diplomacy on his behalf while withholding such authority from other members of Congress, but if that is to justify selective prosecution under the Logan Act, one would think that the authorization would have to come before the diplomacy.
4) Because no one has ever been convicted of violating the Logan Act, and no indictments have even issued in the last 200 years, any inferences about its meaning are necessarily speculative. See point 1 above.