Michael Flynn’s plea hearing last Friday—which I had the good fortune to witness—was accompanied by an extraordinary “Statement of the Offense.” The document indicates that senior members of Donald Trump’s presidential transition team sought to undercut the efficacy of the Obama administration’s stance on a sensitive U.N. Security Council resolution. They also attempted—successfully—to change the Russian government’s behavior in relation to a live controversy between the two countries.
Plenty of commentators have suggested that those members of the Trump team responsible could, and perhaps should, be prosecuted under a centuries-old statute known as the Logan Act. The thirst for punishment is understandable: A highly resourced corps of elite lawyers has been commissioned to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” or any matters “aris[ing] directly therefrom.” In the course of doing just that, Robert Mueller’s team has obtained sworn admissions that might well satisfy each of the Logan Act’s elements.
It’s too facile, moreover, to argue that presidential transition teams necessarily possess the “authority of the United States” for these purposes. Of course incoming Presidents should be free to engage in stage-setting discussions with their future counterparts; all of them do, and nothing in the Logan Act forbids those healthy exchanges. What the Act criminalizes is an unusually harmful subset of communications with foreign governments: ones intended to “defeat” concrete “measures” of the United States, or to undercut the authority of a sitting President by altering how foreign governments will resolve pending “disputes or controversies” with the United States.
In other words, the Logan Act’s limited domain ensures that transitional figures won’t be jailed for swapping pleasantries with foreign leaders or even engaging in substantive foreign-policy discussions. Judges should, however, hesitate to conclude that dueling “authorities” can exist concerning the types of situations covered by the Act. Incoming officials oughtn’t be privileged to meddle in missile crises or sabotage sensitive negotiations. (Note that the “authority” issue could also bear on Trump’s impeachability for conduct undertaken during the transition period. If his chosen go-betweens are immune from Logan Act liability because their actions bore a sufficient nexus to the exercise of Article II powers, those lapses might be fairly characterized as an abuse of the powers of the presidency, despite their having occurred before January 20, 2017.)
But these interpretive exercises, intriguing as they are, shouldn’t distract us from something far more serious—the likely collateral effects of using the Logan Act to prosecute Trump’s confidantes. I’ve yet to see the President’s critics pause to consider what seems to me so apparent: A Logan Act indictment would be deeply pernicious for our political culture. It would compound the tragedy our institutions are experiencing, to the detriment of the people served by them.
As this year’s screwball headlines have reminded us, politicians love to minimize their own indiscretions by accusing their opponents of equivalent, if not far worse, misbehavior. Sure, Flynn pleaded guilty to lying to the FBI—but what about Crooked Hillary’s “many” lies to the FBI? How about her campaign’s collusion with Russia? Her mishandling of classified information? The violence she incited at my rallies? Someone should appoint a special prosecutor to look into those situations! In our polarized media environment, confident counter-accusations of wrongdoing inevitably stir up cries of hypocrisy and witch-hunting.
It’s anyone’s guess whether Mueller’s team has wielded the Logan Act as leverage to obtain cooperation. But if the Special Counsel actually brought charges under that law, the White House would condemn the effort as a witch hunt on stilts. Trump could point out that not a single person in 218 years had been prosecuted for violating the Logan Act. He might also demand that legions of prominent Democrats be investigated for their interactions with foreign officials. This time, though, his ripostes couldn’t be dismissed as Trumpian fantasy. And his Justice Department could return the favor—dealing a blow to our democratic health—by actually prosecuting his political rivals under the pretense of equal treatment. (Trump’s wishes might carry extra heft here, since Logan Act violations are essentially crimes against the presidency.)
I began working on a Logan Act project long before Trump’s fateful escalator ride. From that vantage of relative scholarly neutrality, I can confidently report that open contempt for the Logan Act has a long, long pedigree, as do private citizens’ parleys with foreign leaders that might warrant further investigation in a world of aggressive Logan Act enforcement. Neither side is remotely innocent here. In issuing a Logan Act indictment, Mueller’s team would effectively be shattering a truce that has allowed Democrats and Republicans alike to ignore the legal ramifications of decentralized diplomacy. Mayors, state legislators, governors, congressmen, jurists, ex-Presidents, athletes, actors, musicians, professors, industrialists—all have seemingly befeloned themselves with impunity.
Trump’s morning-after tweets aren’t hard to imagine. Barack Obama has already met with Angela Merkel, Xi Jinping, and Emmanuel Macron since leaving office. At its peak, the Clinton Global Initiative “brought together more than 200 sitting and former heads of state” to find “solutions to the world’s most pressing challenges.” California Governor Jerry Brown has been globetrotting for months to undermine Trump’s climate policies. As DNC Chair, Howard Dean spoke with several world leaders to assure them that there was “an opposition in America” that would soon “have much better relationships with them.” Nancy Pelosi met with Syrian President Bashar al-Assad in 2007, brushing aside the Bush administration’s wishes. After leaving office, Jimmy Carter lobbied U.N. Security Council members to defeat a U.S.-backed proposal to authorize the use of force in Iraq. (He has also interacted with more world leaders than I knew existed.) Jesse Jackson has extricated hostages and political prisoners through feats of defiant freelancing. John Kerry participated in peace discussions during the Vietnam War, which he described as “on the borderline of private individuals negotiating.”
Prosecuting anyone under the Logan Act—at least before announcing an intent to begin enforcing it—would be colossally unfair to the Act’s inaugural victim. The Trump team’s conduct simply can’t be characterized as “an unprecedented clear violation.” As I detail in my paper, Presidents’ foreign-policy prerogatives have been openly wrested from them with shocking frequency. (In 1848, the United States even acquired over half a million miles of territory from Mexico thanks to a brazen violation of the Logan Act.)
There are better and worse usurpations of presidential power; reasonable minds can disagree on whether the Trump team’s Loganeering harmed U.S. interests to an unprecedented degree. But that’s a different issue than whether someone should be charged because of how clearly her behavior did (or did not) satisfy the Act’s elements. By the latter metric, the conduct depicted in Flynn’s Statement of the Offense isn’t unprecedented. It’s not even that unusual.
In today’s fraught historical moment, only Mueller’s investigation seems capable of delivering sober repercussions in a way that leading Republicans can’t easily delegitimize. If one or more of Trump’s associates were indicted under the Logan Act, congressional Republicans would understandably decry the move as an outrageous departure from a longstanding norm of American governance. Sound familiar? Sad to say, Mueller’s perceived moral clout—like every other issue that matters—is dangerously linked to the vicissitudes of partisan politics. If Republicans uniformly denounce Mueller as the Javert of L’Affaire Russe, it’s hard to imagine him serving for much longer. (Let’s not forget: One of the stated reasons for FBI Director Jim Comey’s termination was his deviation from “longstanding principles.”) A Logan Act indictment could thus furnish political cover for Trump to let even more pressure off himself, and in a way unlikely to obligate Republicans to hold him accountable.
Setting aside this political morass, Logan Act charges could also present a logistical quandary. Commentators typically assume that litigating the issue would entail an ordinary act of statutory interpretation: namely, did the defendant in fact seek to “defeat the measures of the United States,” or to influence a foreign government’s conduct “in relation to any disputes or controversies with the United States”? But the usual tools of ascertaining meaning, like dictionaries and case law, might not matter on these questions. That’s because they involve quasi-factual assessments implicating the President’s core ability to construct and implement our nation’s foreign policy. For example, was the Obama administration’s unstated preference that the U.N. Security Council condemn Israeli settlement construction a “measure” of the United States?
Judges probably can’t decide that question in an interpretive vacuum. The executive branch’s determination might well operate as a binding rule of decision on what is arguably a “political question” in the classic sense. And who currently sits atop the U.S. government’s vast diplomatic apparatus? Donald Trump, and not the special counsel investigating him. Faced with contradictory assertions from a decidedly non-unitary executive on a matter directly implicating foreign affairs, a judge might have to conclude that Trump’s answer—perhaps provided via tweets rivaling Mueller’s filings in court—would control. And don’t underestimate the capacity of creative executive-branch lawyering to twist what we see with our own eyes. In 1961, President Kennedy claimed with a straight face that his effort to extricate survivors of the Bay of Pigs invasion involved no “disput[e] or controvers[y]” with the Castro regime.
Every administration ever presented with a colorable Logan Act violation has declined to go forward. Elsewhere, I’ve characterized this unparalleled passivity as a glaring Take Care Clause problem. My point here is that the notorious absence of Logan Act prosecutions has fostered an enduring, and thoroughly bipartisan, culture of permissiveness concerning chats with foreign powers. If all of that suddenly changes, our political discourse could become saturated with well-founded accusations of criminality. I hope that Mueller’s team is weighing these social costs, and I would urge Logan Act enthusiasts to heed them, as well.