The Logan Act was intended to apply only to private citizens and was a politically motivated act antagonistic towards Jefferson and Madison’s Republican Party.
To ascertain the motivation behind the Logan Act, the motivation for the Aliens and Sedition Acts of 1798 by Adams and the Federalists must be examined. These acts, under the guise of French infiltration, were intended, and in execution, aimed to silence the Republican party of Jefferson and Madison. The prosecutions were used exclusively against Republicans by Federalist prosecutors and judges, with the primary focus on Republican congressmen and newspaper editors who spoke against the Federalists. The anticipated result was to ensure that Adams was re-elected by defeating Jefferson in 1800.
With an understanding of the motivation and application of the Aliens and Sedition Acts, the relationship of the Aliens and Sedition Acts and their progression culminating with the Logan Act, only then can the diabolical political motivation for the acts by Adams can be understood.
Adam’s explicit motivation for the act was to target George Logan and the Republicans. In a letter from Adams to the Secretary of State, Timothy Pickering, dated November 2, 1787, Adams manifested his intent:
The object of Logan, in his embassy, seems to have been to do or obtain something which might give opportunity for the “true American character to blaze forth in the approaching elections.” Is this constitutional for a party of opposition to send embassies to foreign nations to obtain their interference in elections?
George Logan was a Republican and a very influential and vocal critic of Federalist’s policies. He was a member of the Société française des amis de la liberté et de l’égalité. On the opposite end of the political spectrum were Jacobinism and Hamiltonism. Logan was a close associate of Citizen Genêt. Logan traveled to France with a letter from Jefferson vouching for his credentials. Marquis de Lafayette was instrumental in getting Logan to France. The result was that Logan, as a private citizen, prevented war with the French and was subsequently hailed as a hero. It would be intellectually dishonest to declare that had Logan been a private citizen or a U.S. Congressman who was as influential and outspoken regarding supporting Federalist policies that Adams and the Federalist would not only have never considered the Logan Act, but would have used Logan as an integral part of the election of 1800.
Adams made clear that the Logan Act would target private citizens by delineating between a private citizen and an agent of the government in a letter to the Senate on December 12, 1798:
Although the officious interference of individuals without public character or authority is not entitled to any credit, yet it deserves to be considered whether that temerity and impertinence of individuals affecting to interfere in public affairs between France and the United States, whether by their secret correspondence or otherwise, and intended to impose upon the people and separate them from their Government, ought not to be inquired into and corrected.
The definition and understanding of the phrase “public character” in 1798 was the government or the state.
The language and focus during the debates within the Congress was directed at private citizens. A few examples of the debates delineating the difference between a private citizen and the government:
Robert Goodloe Harper:
The principle once admitted must go to the utter subversion of government—the principle being that whenever an individual, or, by stronger reason, a number of individuals, conceive themselves wiser than the Government, more able to discern or more willing to pursue, the interest of the country, they may assume its functions, counteract its views, and interfere in its most important operations.
John Rutledge, Jr.:
…that in all well-constituted Governments it is a fundamental principle that the Government should possess exclusively the power of carrying on foreign relations.
The bill proposes to punish any person who shall interfere in any controversy to dispute between the Government and any of these foreign Governments. Indeed, this is part of our defense which is above all others necessary, as it will defend us against foreign intrigue, against what has already brought upon this country great calamities and involved many others in irretrievable ruin. This crime is, of all others, of the deepest dye. The evil of an offense of this kind is that it involves a whole nation and puts at hazard everything we hold dear.
The language in the Logan Act created two classes of actionable crimes:
(1)Those performed by United States citizens wherever resident or abiding; (2) those performed by a person resident in the United States, whether alien or citizen.
(1) The actions forbidden to United States citizens are:
(a) Without the permission or authority of the Government;
(b) Directly or indirectly;
(c) To commence or carry on any verbal or written correspondence or intercourse with any foreign government or any officer or agent thereof,
All contemporary dictionaries and the common usage of the phrase “carry on” meant “to promote, advance, or help forward.”
Even though the letter that the forty-seven Senators sent to Iran on March 9, 2015, was imprudent and inappropriate, it did not violate the Logan Act. Moreover, as demonstrated above, the difference between a private citizen, the government, and the government’s authority in the Logan Act was defined.
Regarding the basis of the letter, the Constitution explicitly defines the President’s binding treaty power, and it is only through the advice and consent of the Senate that a self-executing treaty, which does not violate any provision in the Constitution, can have the force of law through the supremacy clause. Considering that the Iran agreement is an executive agreement created and approved solely by the executive branch, it cannot have the force of law nor can it be judicially enforced. This concept outside of the intent of the treaty clause of Article VI, was judicially established in Marshall’s opinion in Foster v. Neilson, 2Pet. 253, 315 (1829). Foster was also used by Roberts in Medellín v. Texas, 552 U.S. 491 (2008):
This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that—while they constitute international law commitments—do not by themselves function as binding federal law. The distinction was well explained by Chief Justice Marshall’s opinion in Foster v. Neilson, 2Pet. 253, 315 (1829), overruled on other grounds, United States v. Percheman, 7Pet. 51 (1833), which held that a treaty is “equivalent to an act of the legislature,” and hence self-executing, when it “operates of itself without the aid of any legislative provision.” Foster, supra, at 314. When, in contrast, “[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect.” Whitney v. Robertson, 124 U. S. 190, 194 (1888). In sum, while treaties “may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” Igarta-De La Rosa v. United States, 417 F. 3d 145, 150 (CA1 2005) (en banc) (Boudin, C. J.).
To further acquit the forty-seven Senators of violating the Logan Act, the perfunctory use of textualism will suffice. The one-off non-reciprocated letter to Iran by the forty-seven Senators becomes problematic for violating the Logan Act with the word “correspondence.” The definition and common usage of the word “correspondence” in 1798 was “mutual commerce, reciprocal, acting in return to the other.” The absence of exchanges between Iran and the forty-seven Senators eliminates the furtherance of the issue regarding a violation of the Logan Act and ends with the one-off letter sent by the Senators.
A cursory perusal of the Digest of United States Practice in International Law produced by the State Department regarding U.S. Senators George McGovern and John Sparkman and Cuba further defines the limits of the Logan Act:
The clear intent of this provision [Logan Act] is to prohibit unauthorized persons from intervening in disputes between the United States and foreign governments. Nothing in section 953, however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution. In the case of Senators McGovern and Sparkman the executive branch, although it did not in any way encourage the Senators to go to Cuba, was fully informed of the nature and purpose of their visit, and had validated their passports for travel to that country.
Senator McGovern’s report of his discussions with Cuban officials states:“ I made it clear that I had no authority to negotiate on behalf of the United States— that I had come to listen and learn….” (Cuban Realities: May 1975, 94th Cong., 1st Sess., August 1975). Senator Sparkman’s contacts with Cuban officials were conducted on a similar basis. The specific issues raised by the Senators (e.g., the Southern Airways case; Luis Tiant’s desire to have his parents visit the United States) would, in any event, appear to fall within the second paragraph of Section 953.
Accordingly, the Department does not consider the activities of Senators Sparkman and McGovern to be inconsistent with the stipulations of Section 953.
The State Department addressed Nixon’s China visit as a private citizen and summarized the visit as not violating the Logan Act, but conclude that no one has ever been prosecuted under the Logan Act:
It is the responsibility of the Department of Justice to make determinations of whether criminal statutes of this sort have been transgressed and whether individuals should be prosecuted under them. However, the Department of State is unaware of any basis for believing that Mr. Nixon acted with the intent prohibited by the Logan Act. In this connection, it should be noted that no one has ever been prosecuted under the Logan Act.
In one of the few judicial rulings regarding the Logan Act, Waldron v. British Petroleum Co, the vagueness doctrine was applied regarding the terms “defeat” and “measures.” Under the vagueness doctrine, a criminal law must be explicit regarding what conduct is punishable under the law, and the Logan Act fails this test myriad times.
Waldron v. British Petroleum Co 231 F. Supp. 72 (S.D.N.Y. 1964):
Another infirmity in defendants’ claim that plaintiff violated the Logan Act is the existence of a doubtful question with regard to the constitutionality of that statute [Logan Act] under the Sixth Amendment. That doubt is engendered by the statute’s use of the vague and indefinite terms, “defeat” and “measures.” Neither of these words is an abstraction of common certainty or possesses a definite statutory or judicial definition. If you cannot define it, you cannot prosecute it: constitutionally vague.
Since, however, there are other grounds for disposing of this motion, it is not necessary to decide the constitutional question. Furthermore, any “ambiguity should be resolved in favor of lenity.”
The Court finds no merit in plaintiff’s argument that the Logan Act has been abrogated by desuetude. From the absence of reported cases, one may deduce that the statute has not been called into play because no factual situation requiring its invocation has been presented to the courts. Cf. Shakespeare, MEASURE FOR MEASURE, Act II, Scene ii (“The law hath not been dead, though it hath slept.”)
It may, however, be appropriate for the Court (Canons of Judicial Ethics, Judicial Canon 23) to invite Congressional attention to the possible need for amendment of Title 18 U.S.C. § 953 to eliminate this problem by using more precise words than “defeat” and “measures” and, at the same time, using language paralleling that now in § 954.
In conclusion, the letter by the forty-seven Senators was foolish, but not criminal, as foolishness in of itself is not a criminal offense.