Republican Senators Violate the Logan Act

If you thought the House Republicans were being crass in trying to undermine America’s foreign policy by inviting Netenyahu to speak to Congress, the Senate Republicans just went a huge step further and issued an open letter to the government of Iran explained trying to undermine the ongoing negotiations over that country’s nuclear program.

A group of 47 Republican senators has written an open letter to Iran’s leaders warning them that any nuclear deal they sign with President Barack Obama’s administration won’t last after Obama leaves office.

Organized by freshman Senator Tom Cotton and signed by the chamber’s entire party leadership as well as potential 2016 presidential contenders Marco Rubio, Ted Cruz and Rand Paul, the letter is meant not just to discourage the Iranian regime from signing a deal but also to pressure the White House into giving Congress some authority over the process.

“It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system … Anything not approved by Congress is a mere executive agreement,” the senators wrote. “The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.”

Arms-control advocates and supporters of the negotiations argue that the next president and the next Congress will have a hard time changing or canceling any Iran deal — — which is reportedly near done — especially if it is working reasonably well.

Many inside the Republican caucus, however, hope that by pointing out the long-term fragility of a deal with no congressional approval — something Supreme Leader Ayatollah Ali Khamenei has also noted — the Iranian regime might be convinced to think twice. “Iran’s ayatollahs need to know before agreeing to any nuclear deal that … any unilateral executive agreement is one they accept at their own peril,” Cotton told me.

The difference between inviting Netenyahu and this letter are important. Inviting Netenyahu to speak was primarily an act to influence public opinion in the United States (and in Israel, I suspect). But writing a letter to a foreign government is, in my view, a pretty clear violation of the Logan Act. That act says:

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.

It is the president who conducts foreign policy. The Senate’s role is advice and consent, they are not empowered to negotiate with a foreign government on behalf of the country. And if Democratic legislators did this, you know damn well the Republicans would literally be accusing them of treason. I’m certainly no big fan of executive power, but this is not an expansion of executive power, it is precisely what the Constitution intended and the Senate Republicans are explicitly violating the separation of powers and the Logan Act by trying to undermine the executive’s conduct of foreign policy.

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  • http://www.facebook.com/michael.w.busch michaelbusch

    To make sure I understand the legal background here:

    Violations of the Logan Act are considered felonies and specifically do not count as treason by themselves, right? Which does not excuse the senators concerned for their deliberate violation of the rules.

  • gshelley

    On the plus side, when Obama doesn’t have them all arrested, that will put an end to all the talk of him being a tyranical dictator just waiting for an excuse to persecute those who disagree with him

    Absolutely deffinately for sure

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    The Senate’s role is advice and consent, they are not empowered to negotiate with a foreign government on behalf of the country.

    But they are advising. Iran. In this case advising them that the President’s actions won’t outlive his term, and also that they can help by making sure it’s before that.

  • http://www.clanfield.net janiceintoronto

    So why haven’t they been arrested?

  • colnago80

    The difference between inviting Netanyahu and this letter are important. Inviting Netanyahu to speak was primarily an act to influence public opinion in the United States (and in Israel, I suspect)

    Bibi’s motivation was mainly to influence his reelection chances in the Israeli election next week. There appears to be some evidence that it is backfiring and that his party has fallen behind the Zionist Union Party (former Labor Party). I wonder how the Rethuglicans in the Congress will react if Bibi loses?

  • colnago80

    Re janiceintoronto @ #4

    There is some question as to the extent of Congressional immunity when Congress is in session.

  • Pierce R. Butler

    … House Republicans were being crass … Senate Republicans just went a huge step further …

    So is the ball back in Boehner’s court, or is it the Supreme Court’s turn to play “Top This!”?

  • funknjunk

    Glenn Greenwald’s take on the issue compares the Pelosi meeting with Assad during Bush’s Admin to the current situation…. https://firstlook.org/theintercept/2015/03/10/gop-2007-attacks-pelosi-interfering-bushs-syria-policy-v-todays-similar-dem-attacks-iran/

  • Mr Ed

    Normally I would think that Obama and the DOJ would not pursue criminal charges but these are the same people who said he was over stepping his authority by selectively enforcing immigration laws. Maybe they didn’t violate the Logan act, maybe there is congressional immunity only a jury, or 47 juries, can decide that.

    They also had rather bad timing, the news was still on Hillary and the emails but they had to preempt it.

  • dugglebogey

    Is there an example of someone ever being arrested for violating the Logan Act? It happens all the time, like when Dennis Rodman went to North Korea. I don’t think that law has ever been enforced. I agree what the 47 did was out of line, low class and childish, but probably not criminal. First amendment and all that….

  • Reginald Selkirk

    Normally I would think that Obama and the DOJ would not pursue criminal charges…

    The DOJ. That reminds me, is Eric Holder still serving as the Attorney General because Republicans are holding up the nomination of his successor? Perhaps if he promised to enforce the Logan Act, that would incentivize them.

  • caseloweraz

    The closest thing to a Logan-Act prosecution occurred in 1803, when Francis Flournoy of Kentucky was indicted by the US Attorney of that state for advocating in a letter to a Frankfort newspaper that the western U.S. should become a separate nation allied with France.

  • Who Cares

    Aside from this violation there is just the plain stupidity inherent in this threat. It gives the US negotiators an incentive to get home with a treaty before Obama leaves the White house thereby giving (a little) more leverage to the Iranians.

    And then the threat itself. I describe it very crudely at Manos blog as utter stupidity.

    The Iranian foreign minister was quite a bit more diplomatic about it (but the under current said go home kids this is something that concerns grown ups) pointing out that following up on the threat would render thousands of treaties, that were negotiated on in the same manner, worthless due to other nations not being able to trust the US to not unilaterally modify/nullify those treaties. Not to mention is it a slap in the face of the other nations involved in the negotiations (granted that since Russia stopped the Us from getting directly involved in the war in Syria these senators don’t mind slapping Russia)

  • Pierce R. Butler

    As Mitt Romney could and should have told these senators, lately nothing involving the number 47 works out well for Republicans.

  • grumpyoldfart

    But writing a letter to a foreign government is, in my view, a pretty clear violation of the Logan Act

    Fined or imprisoned. What a joke. Those rules are for the hoi polloi. Politicians are never held accountable for things like that.

  • http://www.ranum.com Marcus Ranum

    Wouldn’t a treaty with Iran require congressional approval?

    I.e.: is this whole thing just theater?

    Watching the only country that has ever used nuclear weapons (and on civilian targets, at that) piously lecturing another nation, accompanied by an “un-declared” nuclear power — thank goodness my cynicism meter reads in scientific notation!

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Still, it’s better than the letter colnago80/SLC sent them. And the one I sent them was just drawings of dicks.

     

    What I’m saying is you’ve got to accentuate the positive, among other Bing Crosby and The Andrews Sisters’ lessons.

  • Larry

    Word this afternoon is the real GOP brain trust has signed onto the letter: Rick Perry and Bobby Jindal. Now Iran is gonna HAVE to listen!

  • John Hinkle

    “The next president could revoke such an executive agreement with the stroke of a pen…

    Oh man, this is not going to go down well. Translated to Persian, the above comes out:

    The future Supreme Leader of the Great Satan will distress you with The Pen of Masturbation.

  • Enon Zey

    Steve Vladeck over at Lawfare gives three legal obstacles to any prosecution under the Logan Act.

    http://www.lawfareblog.com/2015/03/logan-act/

  • caseloweraz

    Modus: And the one I sent them was just drawings of dicks.

    You should have sent drawings of bare- breasted women. That might have brought the building down around their heads.

  • comfychair

    I think their goal is to preempt any response to Iran other than bombing/invasion, since that’s what all their tricks are leading towards. I mean, what better way to prevent Iran from developing weapons than the looming threat of foreign invasion? It’s sure to work*!

    *a Republican-bag-of-hammers’ definition of ‘work’ is likely to be the polar opposite of a sane person’s definition of ‘work’.

  • zenlike

    Their ‘goal’ is to score some points with their rabid anti-Obama voters. What, you actually think these GOP idiots actually give a flying fuck about Iran?

  • xuuths

    Isn’t that actually sedition, rather than treason?

  • bcreason

    If Obama charges these idiots it will play into the tyrant narrative. Still he’s on the way out, he should teach them a lesson. I think a 5 million dollar fine each would do the trick. Sending them to jail would make him look like the tyrant they accuse him of.

    If the Logan act is a felony, can a convicted felon be a senator? They should all be fired and their states required to hold a special election to replace them.

  • dmcclean

    Ironically, these same dipshits don’t put any weight on ratified treaties either. Those are basically useful for asswiping, and maybe the occasional nosebleed or dog potty training accident.

  • shadow

    Isn’t this congressional overreach?

  • raven

    Slightly OT but related. And crossposted earlier today on another thread.

    1. I’m getting an ominous feeling here about the USA and Iran. This is how wars start, how Vietnam and Iraq did. People beat the war drums and make up a lot of stuff. Weapons of Mass Destruction in Iraq, the Gulf of Tonkin fake attack.

    There are clearly right wing nutjobs who are suffering from war lack and want another one any where for any reason.

    2. Hard on my friends, who keep getting killed over there, and hard on the USA. These wars cost trillions of USD, which we don’t really have and frequently make things worse, not better. Not to mention herds of veterans with PTSD. I see them downtown often with their packs and cardboard signs.

    3. A war with Iran isn’t going to be easy. They have 80 million people, almost as much as the UK. Many are Shiite religious fanatics who aren’t afraid to die for Allah and Iran. And how are we going to stage this war? Iran borders Iraq, the former Soviet states, and Afghanistan, none of which are viable bases. Jordan isn’t going to be interested. Kuwait?

    We could spend 4 or 5 trillion dollars and lose anyway. And even if we “won”, so what. We won the battle in Iraq and lost the peace. It’s still a huge mess and we are still there, a decade on.

    4. I can’t see that the American people are going to buy an attack on Iran. OTOH, they did for Vietnam and Iraq. Until it became obvious we weren’t getting anything out of them.

  • http://www.facebook.com/josef.mulroney Josef Mulroney

    could obama offer to give these 47 members of the senate to iran?

  • raven

    xpost Mano Singham’s blog yesterday

    If they threaten Iran with war enough, it makes developing a nuclear bomb, not an option but a necessity.

    From their viewpoint, they might see a tottering empire lurching around with no brains running it, hungry for war with any one for any reason, a history of pointless wars they have been losing lately, and almost half the world’s nuclear weapons.

    Turn it around. What would you do if you led Iran and someone kept threatening to destroy you? Probably go for the great equalizer.

    This is BTW, what Israel and South Africa did. Israel is in a bad neighborhood and the Jewish people have a long history of persecution. South Africa was a minority oppressing a majority. Both developed nuclear weapons because they didn’t see that they had any choice.

  • comfychair

    Iran wouldn’t want them. Israel would probably welcome them with open arms, though.

  • Michael Heath

    Enon Zey @ 20, thanks for the insightful link.

    What we’re seeing on left is the same unthinking reactionary partisan tribalistic thinking we see far more often by conservatives. I.e. the left wants to believe the letter is a violation of the Logan Act, where the act can pass constitutional scrutiny, because they find GOP behavior vile.

    I find GOP vile as well, but that should encourage us to not act like the GOP rather than what I’ve been seeing far too much of here and in other examples. We’re much better when we remain dispassionate, use the resources of experts to come to a conclusion, and react logically.

  • llewelly

    funknjuk:

    Glenn Greenwald’s take on the issue compares the Pelosi meeting with Assad during Bush’s Admin …

    I don’t think Pelosi should have visited Assad, but the fact is Pelosi’s attitudes toward Assad were nearly identical to Bush’s.(*) In sharp contrast, the letter the 47 GOP senators sent to Iran explicitly states the Republicans intend to pursue a totally different policy toward Iran. And we can be entirely confident that even the Republicans figured Pelosi didn’t really have different policy goals because they didn’t do anything other than bellyache about it. After all the “Benghazi” investigations they did, you’d think that if they thought they had a chance in hell of making something like a Logan act violation stick, they would have tried to do more – a lot more. (After all, they certainly tried to have Pelosi investigated over other things.)

    Once again Greenwald’s desire to depict both parties as essentially similar has led him to make a terrible analogy.

    He is right that the fact that the Republicans are seeking to start a war with Iran should be bigger news and a bigger moral problem than “undermining the commander chief”, but his path in getting there is so bad it surely doesn’t help that position.

    (*) Greenwald’s only reason for thinking Pelosi intended to pursue a different policy with respect to Assad is that he doesn’t trust Pelosi. Now, sure, no-one should trust Pelosi. But the whole “I wouldn’t trust them if they said the sky was blue” line is supposed to be a fucking joke – it’s not an example of good thinking.

  • lorn

    Once again the Republicans have practiced their ideological-purity–above-all form of political hostage taking and shown that if they cannot have everything their way nothing will be allowed to function. The IRS will not be allowed to collect taxes even as billions are handed out as zero interest loans that will make millionaires billionaires and the GOP screams about the deficit, the infrastructure crumble and unemployment is still very high but hose two issues are never allowed to meet, and the GOP, long using Iran as the boogie man, has now tried to thwart a diplomatic solution with them.

    The general plan is to identify a problem, make it worse, and complain loudly that the current administration is ignoring the issue. Alternatively, they find something that works, like the EPA, break it, and complain that the bureaucracy can’t do anything right.

    Not to Godwin the issue but this pretty much what Hitler did. Make the nation ungovernable so that all alternative parties are discredited. Against a background of chaos and uncertainty people will accept simple answers and scapegoating as long as the talking points are consistently pressed in a clear and confident voice. Once in power they cease their obstruction and allow the situation to calm down, proving their effectiveness and power. Taking credit for solving a problem others couldn’t they gain the confidence of the public. With public confidence and resources they are off to the races building their twisted utopia.

    It is hard to be cynical enough.

  • badgersdaughter

    According to the plain language of the Logan Act, if I were to be a sponsor for my husband’s US immigration visa (green card), and the US was about to reject the visa application, and there was a document that could be supplied by the home country that would fully address Immigration’s objections, and I wrote to the government of that home country to ask them to please expedite the production and delivery of that document, I could be in violation. No? :)

  • dingojack

    If the signatories were acting as individuals, then they’re in violation of the Logan Act (as they are conducting private diplomacy without the authority of the US government), and if they’re acting as members of the US Congress or Senate then they’re acting as an agent of the US government and so have restricted First Amendment rights (because they’re not authorised to speak for the US government as a whole)…

    Either way, they’re forked.

    [NB IANAL].

    Dingo

  • dingojack

    The US Constitution gives the President the power to make treaties, either alone or on the advice of, and in consultation with, the Congress. Nowhere does it give Congress (or individuals within Congress) the power to conduct negotiations privately with foreign powers.

    As to the idea that a future President can simply terminate a treaty by executive fiat, the last time this was tried was by Jimmy Carter, unsuccessfully.

    Dingo

  • Morgan

    That’s the Logan Act? When I’d seen it mentioned before I’d assumed it was a restriction on who in the government is allowed to deal with foreign governments with any kind of authority. The actual wording seems astonishingly restrictive – doesn’t this technically criminalize, for example, a lot of petitions and letter-writing campaigns such as from Amnesty International? Although I guess most of those aren’t “in relation to any disputes or controversies with the United States”, but generally about internal matters…

  • jws1

    Ok. So let’s arrest the Senators who are behind this on grounds of treason. Lock them up in Gitmo – never to return.

    After all, as Cotton himself noted, Gitmo is important to keeping America safe from those who would harm our security.

  • eamick

    According to the plain language of the Logan Act, if I were to be a sponsor for my husband’s US immigration visa (green card), and the US was about to reject the visa application, and there was a document that could be supplied by the home country that would fully address Immigration’s objections, and I wrote to the government of that home country to ask them to please expedite the production and delivery of that document, I could be in violation. No? :)

    No. Another portion of the act (which isn’t in this posting) specifically allows citizens and their agents and representatives to deal with foreign governments on such personal matters.

  • eamick

    If the Logan act is a felony, can a convicted felon be a senator?

    The Constitution doesn’t forbid it. Other than the age, citizenship and residency requirements, only those impeached, convicted, and sentenced to disqualification from Federal office are ineligible.

  • badgersdaughter

    No. Another portion of the act (which isn’t in this posting) specifically allows citizens and their agents and representatives to deal with foreign governments on such personal matters.

    I suspected as much, but wasn’t sure; the issue came up in chat and we were curious. Thanks.

  • Georgia Sam

    Can you imagine if a group of Democratic senators had done such a thing to George W. Bush? Screams of “Treason!” and “Sedition!” would be echoing up and down the halls of the RNC headquarters, the American Enterprise Institute, the Heritage Foundation, Faux News studios…

  • throwaway, never proofreads, every post a gamble

    Good news everyone: There was a WTP petition filed which has met it’s signature goals!

    https://petitions.whitehouse.gov/petition/file-charges-against-47-us-senators-violation-logan-act-attempting-undermine-nuclear-agreement/NKQnpJS9#

    Bad news everyone: the typical response to a WTP petition is all bluster and no action.

  • throwaway, never proofreads, every post a gamble

    Worse news: I used “it’s” instead of “its”. Blargh!

  • abb3w

    @44, throwaway, never proofreads, every post a gamble:

    Bad news everyone: the typical response to a WTP petition is all bluster and no action.

    Worse, the petition leaves a clear loophole for such response. By referring to the possible Logan Act violation as “treason”, it would well deserve a response lecturing the petitioners that Article III Section 3 defines that Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. Logan Act violations may constitute criminal disloyalty, but not Treason.

  • rabbitscribe

    Um, folks? No one has ever been convicted of a violation of the Logan Act. No one has even been indicted in centuries. It’s far more likely that these Senators will enjoy a restful stay at the Crossbars Resort for violating one of those “It’s illegal to carry a pig on a unicycle in Scranton, PA!” ordinances from the email spam your grandmother forwards you. It’s all good fun trolling right-wing websites with, “How many Senators will be replaced in special elections, and how many by governors’ appointments?” But nothing is going to happen.

  • abb3w

    @47, rabbitscribe:

    No one has ever been convicted of a violation of the Logan Act. No one has even been indicted in centuries.

    Neither rarity of need nor rarity of offense invalidates a law. It’s not very often that governments try violating the Third Amendment, either; but Engblom v Carey still insisted it was the law of the land in 1982.