The Logan Act Is Not a Friend to Liberalism

By Charles C. W. Cooke

Friday, March 13, 2015

Donna Brazile, a political activist who is at present serving as the vice chairwoman of the Democratic National Committee, would very much like it if the president of the United States would arrest half of the Senate. Yesterday afternoon, as the American workday was coming slowly to its close, Brazile added her voice to a growing chorus of leftward-leaning zealots who are calling for the imprisonment of the Republican caucus within the nation’s upper legislative branch. “File charges against the U.S. senators” who wrote to Iran, Brazile exclaimed excitedly. Why? Because they’ve violated the Logan Act, of course.

It is fair to say that until last week most Americans had not heard of the Logan Act. Now, it is all the rage in progressive circles. As of today, 270,000 people have signed a White House petition on which it is contended that the 47 Republican signatories to Tom Cotton’s letter of constitutional clarification “committed a treasonous offense when they decided to violate the Logan Act” and should therefore be sent to jail. Such as it is, the case against Cotton et al. is reasonably straightforward. First, the petitioners note that the Logan Act of 1799 explicitly prohibits unauthorized citizens from engaging in diplomatic negotiations with foreign governments. Next, they suggest without evidence that the GOP’s letter did just that. And, finally, they conclude that its sponsors are guilty of a felony. Is it time for Cotton to wear orange?

Unsurprisingly, the answer to this is “No.” Indeed, one almost has to feel embarrassed by the scale of the petitioners’ credulity. For a start, the Logan Act almost certainly does not apply to open letters that are penned by representatives from the Senate — which body, we might remember, enjoys a constitutionally enumerated role within the nation’s foreign policy. And, even if it did apply, the inevitable legal challenges would swiftly prevail. In a widely cited analysis, American University’s Steve Vladeck has proposed both that the act is “unconstitutionally vague” and that it would be “unlikely to survive the far stricter standards contemporary courts place on such content-based restrictions on speech.” Brazile’s bluster to one side, it is no accident that, in its entire 216-year existence, the measure has never been used to convict anyone. It will not be used in 2015.

Over at the Huffington Post, Monica Bauer notes bluntly that she has not seen “a single Constitutional Law professor say this is a real thing,” and “for good reason.” That reason: It isn’t. Instead, Bauer suggests, the charge is being drummed up as “click bait for liberals” by the more irresponsible voices within “left-wing media” — that is, by cynics who have not set out to “educate or help,” but only “to raise money.” Bauer is correct, of course. And yet her explanation is somewhat incomplete. Certainly, the need for “click bait” can account for the supply of witless citations. But we might ask what is justifying the demand. In theory at least, the Logan Act is precisely the sort of stifling, censorious, Pentagon-aiding throwback that our friends within the progressive movement should reflexively loathe. Why the affection?

The simple answer, I’d venture, is that Barack Obama is the president, that he still enjoys something of a cult following, and that, politics being what it is, there is an inbuilt tendency for partisans to define “treason” as the act of disagreeing with leaders they happen to like. Add to this phenomenon the widespread belief among Obama’s apologists that he is the first president who has been expected to remain within constitutional bounds — and, indeed, that he is the first president to have been “disrespected” — and you will see that the claim that his opponents are not so much dissenting as plotting becomes all the more seductive.

For what it is worth, I consider the letter to have been something of a political, if not a legal, blunder. Had the missive been addressed to everybody rather than to the leadership of Iran, we would likely all be talking about something else today. But there is a material difference between unwise and illegal, and an even greater contrast between “dissent” and “treason,” and the attempt of the angry to transmute the clumsy maneuvers of a co-equal branch into the dangerous shenanigans of a traitorous fifth column is an invidious one indeed.

In their endless pursuit of statutes that would prohibit and punish “hate speech,” America’s would-be censors often cite another dark moment in American history. “Sure, you can speak,” they cry; “but you can’t shout fire in a crowded theater!” Knowingly or not, by repeating this canard advocates are endorsing a dangerous line of legal reasoning — one that was not used primarily to protect the public but rather to uphold a most rank despotism. Most people do not realize this, but the “fire in a theater” construction comes not from a case involving a stampede or a panic, but from an infamous 1919 Supreme Court decision in which the nine justices refused to overturn the conviction of a socialist activist named Charles T. Schenck, who had been imprisoned for handing out leaflets that urged Americans to defy the military draft. Unanimously, the Court decided that any speech that could lower morale — and thus, in some way, damage the war effort — was liable to be banned under the Espionage Act. This, I do not need to confirm, is a disgraceful idea, and we would all be better off if our public figures ceased to cite its authors approvingly.

Awkwardly for those who have been shouting it over and over and over again, the Logan Act carries with it a similar shame. Like Charles Schenck before him, George Logan was a pacifist from Pennsylvania who was determined to use any peaceful means he could to dissuade his brethren from descending into warfare. In 1798, Logan embarked on a private trip to France in the hope that an effusive display of friendship might help prevent what looked to be an impending war between that country and the United States. Quite what impact actually Logan had is debatable. Either way, he quickly attracted the ire of the federal government, which, angry at the hero’s treatment to which Logan had been treated in Democratic-Republican circles, sought to imprison him. In both its genesis and its application, the Logan Act was a sibling of the authoritarian Alien and Sedition Acts — that execrable series of restrictive measures the Federalist party saw fit to impose on the new republic before it could hit its stride. Taken together, the statutes sought to instill in a newly free country the ugly principle that the rights of the individual all but disappear in wartime.

Happily for the republic, the election of 1800 put Thomas Jefferson into the White House and effectively rendered both measures moot. George Logan was elected to the Senate in the same year, and continued to agitate for peace. In the last half-century, meanwhile, the Supreme Court has taken upon itself to ensure that the Charles Schencks and George Logans of the world are protected from the overzealous machinations of ignorant, partisan nuts. How peculiar that Donna Brazile and almost 300,000 of President Obama’s keenest admirers would seek to send us reeling in the other direction.