Saturday, April 07, 2007

Logan Act follow-up

With little room to maneuver, a spokesman for President Bush, in response to a question, criticized Republican Congressman Darrell Issa for meeting with Bashar Assad a day after Nancy Pelosi did. This probably neutralizes the story as a partisan political issue, and may effectively end it as a news item, but readers interested in more on the Logan Act and congressional freelancing should check out the first comment on this post, which I've taken (with permission) from Georgetown Law Professor Marty Lederman's message to a constitutional law listserve.


Michael C. Dorf said...

The following (lightly edited) comment is from Marty Lederman (notwithstanding Mike's picture):

[F]rom what little I've read of it, I think that as a matter of public policy, it's not at all clear whether Pelosi's actions were, or were not, helpful or appropriate; whether they were or were not an important overture between Israel and Syria; indeed, whether they were or were not consistent with the stated views of the Executive branch of the United States. (Pelosi was accompanied by Republican legislators, I believe, and they did not object. Moreover, I'd be surprised if Pelosi were not accompanied by State Department officials -- does anyone know? Did she say anything that they informed her was contrary to the views of the U.S.?)

In any event, such communications by legislators with foreign officials -- including communications with our adversaries, and sometimes expressing views contrary to those of the Executive branch -- are nothing new. It's been going on in full force since at least the beginning of the 20th Century. See Detlev Vagts's very interesting 1966 account of the history of the Logan Act in 60 AMJIL 268, 275f. for some prominent examples. If Pelosi is acting unlawfully or inappropriately, she has plenty of company.

As for the Logan Act: Interestingly, it was named after someone who had engaged in unauthorized negotiations with a foreign nation. As Vagts, Louis Fisher and others have recounted, after U.S. negotiations with France broke down in 1798, a Philadelphia doctor named George Logan traveled to Europe to see if he could restart negotiations -- which prompted a congressional rebuke of private citizens who "usurp the Executive authority of this Government, by commencing or carrying on any correspondence with the Governments of any foreign Prince or State." 9 ANNALS OF CONG. 2489 (1798). Congress then enacted the so-called "Logan Act," which broadly provides that:

[quotation of Act omitted by Mike]

The prohibition of this statute, read literally, has been constantly violated since its enactment, as Vagts and others recount. (Indeed, it would appear even to prohibit, e.g., attorneys in the U.S. from representing foreign nations in U.S. litigation.) Yet only one indictment was ever brought -- in 1802, when a Kentucky farmer wrote a newspaper article advocating that the western part of the U.S. form a new nation allied to France, and a zealous United States attorney (John Marshall's brother-in-law!) procured an indictment. Not surprisingly, the case went nowhere. And that's the history of the Logan Act. As Lou Fisher has written, "if ever there is a dead letter in the law, it is the Logan Act and the stilted thinking that inspired it."

Does the Logan Act apply to members of Congress? Vagts says yes, on a literal reading, 60 AMJIL at 290, although the "without authority of the United States" condition certainly would make it an interesting question, in the unlikely event the statute were ever invoked.

Does the Logan Act raise First Amendment questions as applied to private parties? Vagts again suggests it does. I'm not so sure -- at least as to one-on-one private negotiations overseas. But again -- it doesn't matter, because the statute has (appropriately) lapsed into desuetude.

What about the constitutional question of the permissibility of a member of the Congress engaging in diplomatic discussions with a foreign nation? Frankly, it troubles me -- or it would do so if Pelosi were purporting to speak on behalf of the United States.

Congress may, by statute, dictate the foreign policy of the United States. (By the way, that's a fine excuse to note the most important constitutional development of the week: As great and significant as the Court's analysis on Article III standing was in Monday's landmark Massachusetts v. EPA decision, the sentence in Stevens's opinion that might have the most important long-term impact was this one: "[W]hile the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws.")

Nevertheless, perhaps it's the OLC lawyer in me, but I think there's much to be said for the notion that insofar as actual U.S. communications with the outside world are concerned, the President is to be (in Marshall's famous words) the "sole organ" by which U.S. policy is conveyed (consistent, again, with statutory direction). More broadly, as far as official U.S. execution of the law is concerned, Congress and its members and/or agents can have no role, once the process of bicameralism and presentment is completed. Or so say Chadha, Bowhser, WMATA, Buckley, etc., anyway.

For me, then, it would be important to know in what capacity Pelosi was purporting to speak. If she were "only" conveying the views of the opposition party -- or of a prominent private person -- and not purporting to speak for the U.S., then I don't think there'd be much of a constitutional problem, however imprudent or inadvisable her actions might arguably have been. Again, I assume that State Department officials were with her, and that to the extent her views were inconsistent with the official U.S. views, that would have been made known to Syria in no uncertain terms. If that's the case, I think the problems, if any, are not constitutional. But if Pelosi -- or any of the other numerous congressional officials who have long engaged in diplomacy with foreign nations -- purported to be speaking on behalf of the Nation, it would raise constitutional questions.

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