How the Logan Act Does and Doesn't Work

Michael Flynn, former national security adviser to President Donald Trump, leaves the Prettyman Federal Courthouse on Dec. 1, 2017, in Washington, D.C., after pleading guilty to one count of making a false statements to the FBI. Chip Somodevilla/Getty Images

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The U.S. federal law known as the Logan Act has been on the books for more than 200 years. It was hatched when the union consisted of just 16 states, not even a decade after the formation of the State Department (originally, the Department of Foreign Affairs). So it would make sense that by now, the United States would have a pretty good handle on just what the Logan Act is and what it can do.

Well, apparently that's not really the case. There's been confusion surrounding the law since it was enacted. And that uncertainty is one reason that no one, ever, has been convicted of violating it.

Does that mean Michael Flynn, the one-time national security adviser to President Donald Trump who pled guilty to lying to the FBI and is now facing a possible violation of the Logan Act, can rest easy? Perhaps.

What Is the Logan Act?

The Logan Act (18 U.S. Code § 953) was passed into law in January 1799. Because it's short compared to a lot of federal laws, we'll quote it verbatim here:

Basically, that means the Logan Act prohibits unauthorized American citizens from going behind the back of the U.S. government to deal with a foreign power (or "any officer or agent thereof") over "disputes or controversies with the United States."

The reason for the act is simple and completely understandable: The U.S. doesn't want John Q. Public messing around with sensitive foreign policy issues. That's the president's job, according to the Supreme Court, under something known as the "Sole Organ Doctrine." The president is "the sole organ of the nation in its external relations, and its sole representative with foreign nations."

But as with most everything in politics, it's not that simple.

A Brief Logan Act History

Although no one's ever been convicted of a Logan Act violation — it's a felony punishable by up to three years in prison — many people in history have tiptoed around it.

The Rev. Jesse Jackson was thought to be on the wrong side of the act on more than one occasion. Former President Jimmy Carter, as a civilian, has stood informally accused. Richard Nixon probably would have faced a Logan Act indictment for some of the things he did before he became president, if they'd been public information. Activist and actress Jane Fonda faced Logan Act questions back in the '60s. Just a couple years ago, 47 Republican senators got a bunch of Democrats all hot and bothered for sending a letter to Iran, a possible Logan Act offense.

All that statute shaking, for nothing.

The latest to have the Logan Act thrown in his face is Flynn. In the weeks leading up to Trump's inauguration and before Flynn was confirmed as national security adviser, the former general admittedly asked the Russian ambassador to the U.S., Sergey Kislyak, to delay a United Nations vote condemning some Israeli settlements.

Whether Flynn's possible Logan Act dust-up is something either very serious or not serious at all depends on who you talk to. But if there's one thing that is certain about the Logan Act it's this: After all these years, it can still stir debate.

How the Logan Act Works (or Doesn't)

A couple major problems arise when it comes to enforcing the Logan Act these days. One is free speech. It's hard to keep a U.S. citizen, whether authorized by the government to act in an official capacity or not, from exercising it.

"The Supreme Court has basically relegated content-based restrictions, or restrictions on what a person can say, to the dustbin of permissible legislation because it equates them with censorship," University of Texas law professor Steve Vladeck tells the Atlantic.

Another sticking point is that, the way politics works today, it's virtually impossible to keep everybody away from the policy party. U.S. foreign policy, after all, doesn't happen in a vacuum. A lot of people have a lot of varying interests, be they economic, political, religious or whatever.

"Lobbying groups like the American Israel Public Affairs Committee and J Street are routinely involved in disagreements between Israel and the United States. Sometimes they align with the policies of the administration of the day in Washington. Sometimes they oppose those policies as inimical to the well-being of Israel," Frank Bowman writes in Slate. "Regardless of the issue or the prevailing degree of comity between the U.S. and Israeli governments of any given moment, American Jewish groups are constantly in 'correspondence or intercourse' with official representatives of Israel." The same thinking could apply to other groups, like Latino associations that oppose the current U.S. immigration policy, and choose to meet with the Mexican ambassador.

Where We Go From Here

At times, lawmakers have considered repealing the Logan Act. Some say it's useless because of the lack of convictions. To date, only two people ever have been indicted.

But, despite what happens with Flynn (or doesn't), the Logan Act probably will stick around as a political tool, at least, as it was when it was used against ...

Nixon and some of his minions may have come closest to what seems a slam-dunk Logan Act violation, if not much worse. In 1968, while he was running for president, Nixon ordered his people to undermine President Lyndon Johnson's peace talks aimed to end the Vietnam War. Nixon feared the talks would give his opponent, Vice President Hubert H. Humphrey, an edge in the election. The talks fell apart. Nixon won the presidency. The war continued. None of the skullduggery was uncovered until years later.

Now, more than two centuries after its adoption, the Logan Act still stands as one federal law that, legally speaking, has never been broken. Though, clearly, that's not for a lack of trying.