Have a drink with: George Logan
Officious intermeddler, or really nice Quaker?
Ask him about: Working vacation in Paris
As the public becomes suddenly, intensely interested in any shred of previously-confined-to-textbooks arcana that might be dragged out of the law closet to explain or mitigate the current Presidential administration, this is a bizarrely entertaining time for legal scholars. (Faithless electors! Emoluments! The 25th Amendment!)
The latest of these, invoked around the supposition of Trump associates conducting conversation with Russian government officials, is the 1799 Logan Act. To be fair, this is not a new issue: the Logan Act has been dragged out as a possible remedy by nearly any disgruntled partisan over the years to object to the conduct of some politician or activist they don’t like (don’t believe me? Just ask Jimmy Carter, Obama, Trump, Jesse Jackson, Jane Fonda and Ross Perot).
The Logan Act has a simple message. In short: “Hey, you! Yes, you. Are you part of the executive branch? No? Then don’t negotiate with foreign governments.”
Officially, that’s:
“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.”
The law has its origin with George Logan, a multi-hyphenate Philadelphian (Republican-Quaker-farmer-doctor-writer) who in the late 18th century was one of a clutch of anti-Federalist politicians aligned with Thomas Jefferson.
The post-Revolutionary years were a panicky, uneasy time for a very new America; and let’s face it: as the nation was actively engaged in the act of self-definition, we were often sort of defensive, grabby and prejudicial about it.
Relations between the U.S. and France deteriorated in the aftermath of the 1795 Jay Treaty, and after American diplomats were allegedly asked for a kickback in exchange for the right to engage in discussions, Americans embraced an upswept nativism (“millions for defense but not one cent for tribute!”) and mass opposition to Jeffersonian politics (in short: Federalists though Jefferson and the Republicans were louche Frenchy revolutionaries, and Republicans thought the Federalists were uptight elitist tools). The U.S. promptly passed the Alien & Sedition Acts, raised a navy and started some serious anti-French military posturing, even asking George Washington to come out of retirement with Hamilton as his right-hand man.
Disappointed at France’s rejection of the American emissaries, Logan went to France in June 1798. He carried a character reference in his pocket from Thomas Jefferson and a very Quaker desire to broker peace, and during a three-week visit Logan indeed did meet with French foreign minister Talleyrand – coming home with news of a French decree to lift the embargo on American ships (evidence suggests this was probably in the works anyway).
The French were polite enough to Logan, if not earnestly productive. The American establishment, when he returned, was a lot sharper (“Sir, it is my duty to inform you that the government does not thank you for what you have done.”). Not only did they think France was playing Logan for a fool, they screamed meddling and treason – and didn’t want every Joe deciding to make statesmanship a hobby, thank you very much. President Adams was cordial towards Logan but clear in his intent, commenting before Congress on the “officious interference of individuals without public character or authority.” Roger Griswold of Connecticut introduced legislation to put some fences around the matter, and on January 30, 1799, the Logan Act was signed into law. Though it warned off any future independent diplomacy, the law couldn’t be applied retroactively to Logan himself, who held his job in the Pennsylvania assembly by a comfortable majority and, after his man Jefferson won the crazypants 1800 election, spent six years as a U.S. Senator.
The act has been seldom used, with scant evidence of even one conviction, and it is often criticized for vagueness and disuse, with the court in Waldron v. British Petroleum quoting Shakespeare to describe the act’s persistent state: “The law hath not been dead, though it hath slept.”
Which does have a more poetic ring than “it’s not dead; it’s resting.”
Fun Facts:
No convictions? Well, maybe one.
Small world: while in Paris for his three-week trip, Logan met with pro-Jefferson folks including Robert Fulton, who was trying to pitch the French his post-Turtle submarine project.
“Returning to Mount Vernon, Washington was so confident that big money offers would come rolling in that he commissioned, at great personal expense, a new set of teeth, which had been handcrafted from the finest Cuban mahogany.” (Satire. SATIRE.)
Read enough about the Logan Act and you’ll see the word “desuetude,” referring to a legal principle by which a law’s general dormancy effectively means it is void for non-use, and can be deemed unenforceable by a court. Desuetude. Really.
A lot goes into the discussion around whether the Logan Act is or isn’t relevant, applicable or useful, including the “speech and debate clause” that generally shields Congressional members from liability for actions taken in the course of their duties; the First Amendment’s prohibition on content-based regulation of speech; and void-for-vagueness challenges under the Fifth Amendment (which requires that criminal laws be clear and specific about what exactly is punishable).
Additional Reading:
The Logan Act, 18 U.S.C. §953
Mark Hosenball, “Republican attempt to deflect Trump-Russia probes could backfire: sources,” Reuters, September 11, 2017
Claire Foran, “What Is the Logan Act and What Does It Have to Do With Flynn?,” The Atlantic, February 15, 2017
Frederick B. Tolles, “Unofficial Ambassador: George Logan’s Mission to France, 1798,” The William and Mary Quarterly, v.7, n.1 (Jan., 1950)