The news from overnight that National Security Adviser Michael Flynn has resigned over his inappropriate pre-Inauguration dealings with Russia has also reinvigorated the debate over whether he can and should be prosecuted for violating the Logan Act, 18 U.S.C. § 953. Although Steve has previously suggested that the Logan Act couldn’t be used to prosecute members of the presidential transition team (if it could be used at all, given that it’s been moribund for over 200 years and is, in any event, a content-based restriction on speech), an exchange over e-mail between us about Steve’s prior post led to this Q&A that more fully fleshes out those arguments:

Ryan to Steve: You wrote that the spirit of the Logan Act, if not its letter, would not apply to members of an incoming presidential transition team. But the White House appears to be saying that Flynn was going rogue on those phone calls, that he never cleared it with them to speak about the sanctions, and that he lied to them about the content of the calls afterwards. If that’s true, wouldn’t it throw out the window an analysis that says a person acting in their capacity as a presidential transition team member does not come under the Logan Act? Flynn would have been acting not only “without authority of the United States,” but also without authority of the presidential transition team.

Steve to Ryan: It might. But the absence of any Logan Act prosecutions means that there’s been no judicial analysis of what it means to act “without the authority of the United States” in this context. For example, it’s not clear to me that a serving Cabinet officer—who we all agree would ordinarily exercise the “authority of the United States”—would violate § 953 if he engaged in unauthorized communication with a foreign government with the “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.” The question is whether “authority of the United States” in this case literally requires the President’s (express or tacit) approval of the content of the communication (which, contra another post of mine, would likely mean that Members of Congress would often act without such authority), or whether it just means under color of U.S. authority. I think the better reading of the Act’s text is the latter—but that’s especially true if the former reading would potentially raise some of the constitutional concerns to which I’ve previously alluded.

Ryan to Steve: You wrote: “[T]he Logan Act predates the Supreme Court’s 20th-century invigoration of the First and Fifth Amendments, which, between them, do not look too kindly on either content-based restrictions on speech (which the Logan Act clearly is), or criminal laws that do not clearly articulate the line between lawful and unlawful conduct (which the Logan Act may well not do).” On the First Amendment: are Flynn’s phone calls really protected speech? Why aren’t those phone calls a form of conduct? What about words used in planning to commit a crime, the words used to warn a criminal where the police are located, the words used in providing information to aid an enemy in wartime? How do you draw the line between speech and conduct, and why does Flynn’s phone call fall into the former category?

Steve to Ryan: I’m a big fan of Eugene Volokh’s work in general, but especially his 2005 Cornell Law Review article on “Speech as Conduct,” in which he writes that the best way to understand the Supreme Court’s doctrine on the line between speech and conduct is that “Expression can generally be regulated to prevent harms that flow from its noncommunicative elements (noise, traffic obstruction, and the like), but not harms that flow from what the expression expresses.” To me, at least, this is quite clearly the latter—the Logan Act is not directed at harm that flows from the noncommunicative elements of such speech, but “from what the expression expresses,” that is, the substantive interference in the United States’ relations with a foreign sovereign. Nor could one argue for the First Amendment exception for crime-facilitating speech; what crime(s) were Flynn’s speech facilitating?

Simply put, the Logan Act is a content-based regulation of speech entirely because if Flynn had the exact same phone call with the exact same Russian officials at the exact same time in the exact same manner, and all they discussed was the latest UEFA Champions League news, it wouldn’t be illegal. That, to me, is where the First Amendment concern comes from. To be sure, this analysis doesn’t foreordain the unconstitutionality of the Act; it just means we’d have to apply strict constitutional scrutiny. But I have a hard time seeing how the Act would survive narrow tailoring given that it prohibits speech that has the intent, but not necessarily the effect, of interfering with our foreign relations.

Ryan to Steve: On the Fifth Amendment: even though some aspects of the Logan Act might be vague, isn’t it very clear that Flynn’s alleged actions—to blunt the effects of the Obama administration’s sanctions—matched the plain text of the Logan Act: “carr[ying] on … correspondence … with a[] foreign government or any officer or agent thereof … with intent to defeat the measures of the United States.”? It might be difficult to define fully what is meant by “defeat the measures of the United States,” but surely the alleged actions here are a textbook example?

Steve to Ryan: Yes, I think that an as-applied vagueness challenge would run into trouble on what appear to be the facts of Flynn’s case. But it’s worth keeping in mind that the Supreme Court has been rather tolerant of facial challenges to statutes based on vagueness, because of the analogy to concerns that arise from First Amendment overbreadth. As Justice Scalia explained in a vagueness case in 2008, “Although ordinarily [a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others, we have relaxed that requirement in the First Amendment context, permitting plaintiffs to argue that a statute is overbroad because it is unclear whether it regulates a substantial amount of protected speech.” The test for vagueness, Scalia explained, is that “[a] conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” To me, at least, the open-endedness of the Logan Act (and what it means when it proscribes an “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”) makes it a pretty good candidate for a facial vagueness challenge—even if we could all identify cases in which the illegality would indeed be apparent.

Ultimately, the Logan Act is a fun diversion, but I continue to believe it’s only a diversion. And even if my legal analysis is incorrect, there’s still the question of who would actually bring such a prosecution. Flynn’s career may be over, but I wouldn’t be getting ready for a Logan Act prosecution anytime soon.