The Logan Act, 18 U.S.C. §953, is an old but rarely-invoked federal statute prohibiting unauthorized private diplomacy with foreign nations. The Act provides:
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 key elements thus are (1) a communication with a foreign government; (2) without authority of the United States; (3) for the purpose of influencing the actions of the foreign government in relation to a dispute with the United States or of defeating U.S. policy.
Congress passed the Act – officially titled “An act for the punishment of certain Crimes therein specified” – in 1799 and has not materially modified it since. The Act’s inspiration was George Logan, a Republican state legislator from Pennsylvania. During the undeclared “quasi-war” between the United States and France in 1798, Logan on his own initiative travelled to France and met with key French government officials in an effort to improve U.S.-French relations. Logan specifically recommended various actions that France might take to improve relations; the French government subsequently took some of these actions, eventually leading to resolution of the U.S-France dispute, although it is unclear whether Logan’s mission had any influence.
U.S. President John Adams and leaders of the Federalist Party in Congress were unhappy with Logan’s independent and unauthorized diplomatic effort, believing that it undermined official U.S. policy toward France. (At the time, the Federalists were the majority party in Congress, while the Republicans, led by Jefferson and Madison, were the minority; the two parties divided sharply on, among other things, their views of France). In a message to Congress later in 1798, Adams recommended that Congress pass legislation limiting future acts of private diplomacy between the United States and France. In early 1799, Congress passed the act broadly limiting private diplomacy without reference to France specifically, but it was well-known that Logan’s diplomacy had prompted it. Thus it became known informally as the Logan Act (although it couldn’t be used to punish Logan himself as his conduct was not illegal when it occurred).
The Logan Act has been rarely used since its enactment. Apparently only two people have ever been indicted for violating it. In 1803, a private citizen, Francis Flournoy, was indicted for writing an article in a Kentucky newspaper advocating that the western U.S. territories secede and form a separate nation allied with France. In 1852, Jacob Levy, a U.S. citizen living in Mexico, was indicted for writing a letter to the President of Mexico urging him not to sign a pending treaty with the United States. Both prosecutions were dropped before trial. No one has ever been convicted of violating the Act, and no indictment has been sought since 1852. Although the Act has been mentioned in passing by a few courts, these decisions provide little insight as to its scope and applicability.
In modern times, while there have been no prosecutions under the Act, the Act has occasionally been raised in foreign policy disputes, often involving diplomacy in tension with the official foreign policy of the President by members of Congress or other prominent personalities. For example, in 1975 Senators McGovern and Sparkman traveled to Cuba to meet with Cuban government officials, prompting a discussion of possible Logan Act violations. In the 1980s, President Reagan invoked the Logan Act in criticizing unauthorized diplomatic efforts by Jesse Jackson (a private citizen) regarding Cuba and Jim Wright (the Speaker of the House of Representatives) regarding Nicaragua. More recently, some commentators objected on Logan Act grounds when House Speaker Nancy Pelosi travelled to Syria in 2007 to meet with Syrian President Assad, and other commentators raised Logan Act objections to a 2015 letter addressed to the government of Iran by a group of Republican Senators regarding the Obama administration’s pending negotiations over Iran’s nuclear program. No moves to prosecute were made in any of these instances. In the McGovern/Sparkman episode the U.S. State Department concluded that no violation had occurred, in part because the Department concluded the Senators were acting in pursuance of their official legislative duties.
There are at least three likely reasons why there has been such reluctance throughout history to apply the Logan Act. First, although the Act has been in force since 1799, it has not been the basis of an indictment since 1852 and has never been the basis of a conviction. In modern times, episodes of unauthorized diplomacy by prominent private figures and members of Congress have been fairly common – for example, ex-Presidents Carter, Clinton and Obama have frequently met with foreign leaders. In some instances objections based on the Logan Act have been raised, as noted above, but no prosecutions were attempted or (so far as it appears) even seriously contemplated. As a result, some authorities have suggested that the Act is no longer operative under the doctrine of “desuetude” (prolonged non-use), or at least that prosecution would be extremely unlikely as a practical matter. Alternatively, one might conclude that certain categories of practices, such as communications by members of Congress, have been tacitly approved by practice because they have occurred fairly commonly and prominently without being prosecuted. At minimum, one can say that there is a long practice of ignoring potential Logan Act violations, and reversal of that practice in a politically charged case would be controversial.
Second, the Logan Act might be unconstitutional under the First Amendment as a restriction on speech. No case has considered this argument, but some commentators have referred to the Act’s potential unconstitutionality. The Act appears to restrict speech on the basis of its content, but it is possible that the restriction could be justified by a strong government interest in protecting U.S. diplomacy.
Third, even if the Act is operative and constitutional, one might argue that it does not cover persons with an official or quasi-official status in the U.S. government even if they are not speaking on behalf of the executive branch. The Act applies to persons who act “without authority of the United States.” That could be read to mean any persons who do not act with the approval of the President; but it could also be read to mean only persons who have no public status at all. For example, members of Congress, acting in pursuance of their legislative duties, might be thought to act with authority of the United States even when they are not acting with approval of the President. The immediate purpose of the Act in 1799 was to prevent the sort of purely private diplomacy Logan himself engaged in, which is distinct from activities of public officials such as members of Congress.
As with members of Congress, the foregoing factors might counsel hesitancy to apply the Logan Act to the activities of presidential transition teams after a presidential election. The purpose of the transition is to smooth the way for the new administration, and in the diplomatic field that seems necessarily to involve speaking with foreign governments about matters of dispute. Indeed, this seems a vital activity to reduce uncertainty during the transition. It is likely that members of transitions teams of other incoming Presidents have routinely discussed pending disputes with foreign officials without raising Logan Act concerns. The Act’s goal of preventing private diplomacy is far removed from the context of presidential transitions, and there were no quasi-official transition teams at the time the Act was passed. Thus the history and purpose of the Act may suggest that it should not apply to transition teams. Moreover, one might see designated members of a transition team have a sort of official status, having been selected by the President-elect, who in turn has a quasi-official status as a result of the election. Indeed, the presidential transition process is formally established by law: the Presidential Transition Act of 1963, as amended, provides funding, facilities and access to government services for the transition team. Thus, although the diplomatic activities of the transition team may not have been directly authorized by the existing Executive Branch, like the activities of members of Congress they might be seen as done with “the authority of the United States” due to the transition’s quasi-official status and the longstanding purpose and practice of transitions.
In sum, the Logan Act is an old statute that has been curiously ignored though most of its history, leaving us with little guidance as to its application. Various arguments may be raised that it should not apply at all, or should not apply to certain categories or people or activities, in the modern era, but the strength of those arguments is difficult to assess.
Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego Law School.
Jeremy Diamond, Did 47 Republican senators break the law in plain sight? (CNN, Mar, 11, 2015)
Jeremy Duda, A Foreign Affair (History Today, 2017).
Kevin Kearney, Private Citizens in Foreign Affairs: A Constitutional Analysis, 36 Emory L.J. 285 (1987)
Michael V. Seitzinger, Conducting Foreign Relations Without Authority: The Logan Act (Congressional Research Service 2015)