The Logan Act’s non-relevance

Last week Senator Tom Cotton (R-AR) and 46 other Republican Senators signed an open letter to Iranian leaders, telling them that any nuclear deal will be “nothing more than an executive agreement” and could be easily revoked in a different presidential administration.

Liberal pundits and Democrats across the country are outraged over this letter.

President Obama criticized the letter, claiming the Republican’s were aligning themselves with Iranian “Hard-liners.” Former Democratic National Committee Chairman Howard Dean stated that Senator Cotton’s letter “borders on treason.” MSNBC host Chris Matthews suggested that Republican senators might be guilty of sedition, citing that they may be in violation of The Logan Act of 1799.

The Logan Act states:

 “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 argument that Republicans violated the Logan Act seems to be making the rounds lately. Pundits and politicians are screaming of its violation. It has even spawned a recent White House petition calling for prosecution of Senator Cotton for violating the act.

Because the petition exceeded the 100,000 signatures requirement, the White House is required to respond. Unfortunately for the Democrats who signed the petition, they will soon learn that the Logan Act is a non-issue for several reasons.

First, the Logan Act only applies to individuals “without authority” to engage with foreign governments to influence United States policy. Nowhere does it say that the President and executive branch have an exclusive right to conduct foreign policy. Senators have an important role in conducting foreign policy and do have the authority to engage in discussions with foreign officials in pursuance their legislative duties.

Secondly, President Obama decided a long time ago to shut the Senate out of the Iran talks. The President has repeatedly threatened to block any action taken by the Congress that goes against the deal he’s making. Unfortunately, this deal will provide Iran with continued enrichment abilities; a situation that is completely unacceptable to the majority in Congress, as well as the American people.

Historically, the President and the Senate have worked together when engaging in international agreements. The executive branch possesses the authority to negotiate treaties and Senate, with a two-thirds vote, affirms the treaty. Because there is no way that two-thirds of the Senate will ever affirm an agreement that allows Iran to continue enrichment, this is agreement will never be ratified and will remain as an executive agreement, easily subject to change with a new administration.

The letter does not make any demands or mention any specific aspects of the current talks underway. The letter does nothing more than highlight how two Constitutional provisions work. Sending the letter is no more egregious than if the Senate mailed the mullahs a copy of our Constitution; and it would have relay the same core message in the letter.

Finally, the violation of the Logan Act is completely moot because members of congress are protected from arrest when conducting legitimate business, under the Speech and Debate clause of the Constitution. This clause provides an exception from arrest, “…for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place.”

The main purpose of this clause is to prevent members of congress from being arrested for taking actions with which the President might disagree. This clause encompasses communications by Members of Congress acting within their legislative capacity to foreign officials.

Additionally, it must be noted that liberals are by far the most egregious and hypocritical violators of the aforementioned issue of conducing foreign policy behind an Administrations back. In 2002, Rep. Jim McDermott, along with two of his democratic colleagues, traveled to Iraq against then President Bush’s objections. In 2007, then, House Speaker Nancy Pelosi traveled to Syria and met with Syrian dictator Bashar al-Assad, in a display of dissent against President Bush’s foreign policy. In 2008, former President Jimmy Carter met with officials from the terrorist group Hamas. Other supposed violators of this protocol include such notable Democrats as John Kerry, Ted Kennedy, and Jesse Jackson.

This situation only arose because President Obama decided to shut Congress out of their rightful seats at the negotiating table. While the letter could be questioned for its political prudency, politicians and pundits claiming Senator Cotton’s letter is a violation of the law do not have a legal leg to stand on.