The Logan Act: History, Context, and Futility

Intro

We are currently in the “lame duck” period of the Biden Presidency. It’s an odd period of time when the incoming president lacks formal authority and the outgoing president has diminished influence. This period traditionally ensures a smooth transfer of power, helping the new president get up to speed.

Recently, allegations surfaced that members of Donald Trump’s circle have already started meeting with foreign governments, specifically those in the middle east, prior to his inauguration. There have also been examples of this type of activity in his past administration, with Michael Flynn, Rudy Giuliani, Jared Kushner and others. This type of activity is outlawed under 18 U.S.C. § 953, commonly known as the Logan Act, enacted in 1799 to restrict unauthorized diplomacy.

Statute

18 U.S.C. § 953. Private correspondence with foreign governments

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. This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.

Historical Context

Quick Summation

The Logan Act was passed in 1799 following Pennsylvania politician Dr. George Logan’s unauthorized diplomatic efforts in France. Dr Logan sought to calm tensions during a period when France was seizing US ships and conscripting American sailors, known as the Quasi-War. While Dr. Logan’s intentions were noble and successful, his actions were perceived as undermining US authority, prompting Congress to pass the Logan Act.

More Detail

For a more comprehensive analysis, the Federation of American Scientists provides an excellent overview in its 2015 report, Conducting Foreign Relations Without Authority: The Logan Act. I would highly recommend it for additional history and insights.

Opinion

According to Wikipedia only two people have ever been indicted and none have been convicted for violating the law, making its enforcement practically nonexistent.

Like trademarks, laws that are not consistently enforced risk becoming unenforceable. Under US law, selective prosecution can invalidate legal actions, leaving the statute vulnerable to constitutional challenges.

The Logan Act appears to have fallen into this chasm where any attempt to enforce the statue would invite claims of selective prosecution, with attorneys pointing to past non-enforcement and arguing that the government is criminalizing speech.

These factors, combined with past discussions of repealing the Logan Act, underscore its limited viability as a tool for prosecution. The incoming administration currently and in the past shown no interest in enforcing laws that do not benefit themselves. Allowing such violations enabled non-government entities to engage in backroom dealings for personal gain. As it stands, it is highly unlikely anyone will ever be prosecuted under this law.

Disclaimer

I am not a lawyer so seek your own legal advice.

Cheers