The revelations of Mike Flynn’s talks with the Russian government during the campaign and the clear attempt to undermine the foreign policy of the sitting President, Barrack Obama have been in the news this week. Much justified outrage is being expressed and once again, as happens every so often, the public gets reminded of the Logan Act.
Passed in 1799 the Act takes its name from George Logan who attempted to negotiate foreign policy with France on his own. So Congress made it very clear that it is the President of the United Sates and him alone who has the power to negotiate on behalf of the country with foreign powers. Period.
So, given that this is quite clearly stated in US law, why won’t Mike Flynn face indictment and prosecution for what seems like a clear violation of the Logan Act? Because, as it turns out, the Logan Act is one of the singularly most useless laws on the American books. No one, not even the original George Logan, has EVER been prosecuted under this law. The only person to even be arrested was in 1803. This despite a number of truly egregious violations over the years.
In 1968, one of the most turbulent years in American history, the Nixon campaign secretly contacted the North Vietnamese using Anna Chennault as a go between. They attempted to convince the North Vietnamese at the Paris Peace talks not to sign a peace deal until after Nixon was elected. While it is unclear whether this actually made any real difference in prolonging the Vietnam War, it is about as clear an example of what the Logan Act was meant to prevent as any one could find. But no one was charged, it never went to court, and no one was held accountable.
Another heinous violation, never proven of course, was the accusation leveled at the Reagan campaign that they had secretly contacted the Iranian government in an attempt to ensure that the American hostages would not be released while Carter was still President so that he couldn’t claim the credit. Given the proven charges of other nefarious negotiations with the Iranians that became known as the Iran Contra Affair that sent people to jail, a certain amount of credibility exists for these accusations. But they were never pursued.Aside from various attempts to use the law to discourage overseas visits by the opposition Party’s Congressional figures, like George McGovern and John Sparkman visiting Cuba on a “fact finding mission” or Reagan’s outrage with Jesse Jackson returning from Cuba after securing the release of some political prisoners, suggested violations seem to have been fairly minor until the March 2015 open letter by Republican members of Congress seeking to undermine President Obama’s conduct of foreign policy with the Iranians.
That was probably the most clear cut violation in our history of the Logan Act since it was done quite publicly by members of Congress seeking to undermine the foreign policy of the President of the United Sates, which was PRECISELY what the law was written to prevent. A number of calls to prosecute the offending members were made but, once again, nothing actually happened.
So, my researches into this statute indicate that the Logan Act is a singular piece of legislation that is never actually enforced and only serves as a bludgeon used by one party or another to beat up their opponents periodically. It is not at all clear why it is never enforced… perhaps because each side knows that if they use it against their enemies now, they might later be on the receiving end later. Rather like the US and the Soviets agreeing not to shoot each other’s spies. In the end, the chance that the Logan Act will be used to prosecute Mike Flynn are just about zero. It would totally unprecedented for it to happen.