Repeal the Logan Act It’s never yielded a conviction but invites abuse by prosecutors, cops and presidents. By Charles Lipson
https://www.wsj.com/articles/repeal-the-logan-act-11588629596?mod=opinion_lead_pos5
Congress passed the Logan Act in 1799, and it’s long past time to repeal it. Only two people have been prosecuted under it, in 1802 and 1852, and both were acquitted. But the law invites political abuse, as we’ve seen recently in the case of Mike Flynn.
The act makes it a crime for citizens to engage in unauthorized “correspondence or intercourse with any foreign government . . . in relation to any disputes or controversies with the United States, or to defeat the measures of the United States.” Since the U.S. has disputes with every other country, its reach stops just short of lunar orbit.
Since the law is hardly ever enforced, why not leave it alone? Because while the law is still on the books, it can always be trotted out and used selectively, even maliciously. That’s exactly what happened to Mr. Flynn when James Comey’s Federal Bureau of Investigation wanted to destroy him and undermine the president.
The Logan Act is a devilish temptation—to bad cops at the FBI, to bad lawyers at the Justice Department, and to bad policy makers in the White House. The law is so broad and vague it can be used to investigate almost any opponent at almost any time. If anybody can be threatened, enforcement is bound to be selective and discriminatory, not uniform and blind as law enforcement should be. These endemic problems mean the Logan Act would probably be found unconstitutional, if it faced such a challenge. It hasn’t, because no one has been convicted under it. So it lurks on the books, a tool for political mischief.
The Logan Act is not only a temptation for overzealous law enforcement, it’s a temptation for the president himself and his national-security aides. After all, the act deals with foreign policy, which is tightly controlled by the White House. It is also likely to prompt illicit cooperation between the FBI and the Central Intelligence Agency, targeting U.S. citizens. Don’t think that couldn’t happen. It just did.
These problems are profound threats to democracy. Eliminating those threats should command support from both parties. The law used to investigate Mr. Flynn was available to every administration since John Adams’s—including President Trump’s. What about John Kerry, who met last year with Iranian officials, urging them to stick with the nuclear deal and wait out the Trump administration? What about U.S. business leaders meeting with their Chinese counterparts about current sanctions? What about the American Jews and evangelical Christians who advised Israeli politicians about West Bank settlements during the Obama years, directly opposing the president’s policies? What about candidate Trump’s urging Britain to exit the European Union while President Obama was urging it to remain? Each could be investigated under the Logan Act.
The list goes on, and that’s the problem. The president’s appointees at Justice or the FBI could investigate any of them. That open-ended opportunity means the law is poised for selective use, political investigations and prosecutorial abuse. The president sworn in next Jan. 20, Republican or Democrat, will have it available. He shouldn’t.
After the abuse against Mr. Flynn, it’s time to wipe the Logan Act from the books. Don’t let some future James Comey or Andrew McCabe get his hands on that nasty cudgel.
Mr. Lipson is a professor emeritus of political science at the University of Chicago, where he founded the Program on International Politics, Economics and Security.
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