By Anne Zachritz
During the course of the 2016 Presidential election, we heard many references to relatively Constitutional provisions and obscure laws, such as the Emoluments Clause, the Hatch Act, and the Logan Act. Last summer, during a debate, then candidate Donald Trump essentially encouraged the Russian government to find (hack) Hillary Clinton’s missing emails. Commentary then suggested that then-candidate Trump’s invitation for the Russians to interfere in the U.S. election process may have been a violation of the Logan Act. Recently, various sources have reported that retired Lt. Gen. Michael T. Flynn, who will soon serve as President-elect Trump’s national security advisor, had several phone calls with Sergey Kislyak, the Russian Ambassador to the U.S., after President Obama announced the expulsion of Russian diplomats for their intrusion into the U.S. election process. The calls reportedly occurred between the time the Russian Ambassador was told of the reprisals and the time of the announcement by Russian President Vladimir Putin that he had decided not to respond. The contents of Flynn’s and Kislyak’s conversations is unclear. If the purpose of the calls was to assuage Russian anger over the reprisals (or over other sanctions against Russia), Flynn’s contacts with Kislyak may have violated the Logan Act.
Until this election cycle, I was unfamiliar with the Logan Act. The Logan Act (U.S.C. § 953) is fairly old law, signed into law by President John Adams in 1799 following one George Logan’s unauthorized negotiations with France in 1798. The Logan Act prohibits unauthorized U.S. citizens from negotiating with foreign governments with which the U.S. has disputes. The purpose of the Logan Act is to prevent American citizens from undermining official government stances. Specifically, the Logan Act makes it a felony for a U.S. citizen, without authority of the United States, to directly or indirectly commence or carry on any correspondence or interchange with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or 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. Punishment for violations of the Logan Act includes fines and imprisonment of up to three years.
Flynn is a private citizen until President-elect Trump is inaugurated on January 20th, at which time Flynn, as national security advisor, will be exercising government authority. Even if Flynn may have violated the Logan Act, or at least gotten close to entanglement with the Act, does the spirit of the Logan Act prevent Flynn (or any other Trump subordinates) from taking steps to enable the exercise of government authority to conduct foreign affairs? Probably not. Although there have been allegations and accusations of violations of the law, since 1799, only one (1) person has been indicted for violating the Logan Act and no one has been prosecuted for alleged violations.
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Posted on Mon, January 16, 2017
by Andrews Davis filed under