Daniel Hemel and I argue in the New York Times that the Trump administration has more to fear from the Logan Act than most commentators seem to think. The by now standard view, repeated by journalists as well as commentators, is that no prosecutor would try to enforce the law against, say, Michael Flynn and the “very senior” member of the Trump transition team who ordered him to contact Russia, because the law is old and has been so rarely used.
The question to ask, however, is why has the law been so rarely used (only two people have been charged under it, and no convictions have been secured). One possible answer is that prosecutors who have considered charging people believe that it would be all but impossible to convict them—either because of the vagueness of the law or possible constitutional objections. This is probably the source of skepticism among commentators.
But another possibility, which has received little attention, is that no one has ever violated the Logan Act before in a way that could be easily prosecuted. Many of the examples that have been discussed involved members of Congress who have urged foreign governments to disregard some foreign initiative of the president, but members of Congress have an independent argument that they are acting under constitutional authority when they, in effect, warn foreign governments that whatever the president wants to do, Congress will use its constitutional authority to interfere with it.
In other cases, ordinary private individuals have tried to influence foreign governments, but it must have been obvious to prosecutors if they looked into these cases that few private individuals—except possibly CEOs of major corporations—could possibly have any influence over a foreign government. Why would a foreign government care what you or I think? No harm, no foul.
Lastly, there are cases which really seem like Logan Act violations. Most famously, then candidate-Nixon tried to undermine Lyndon Johnson’s peace initiatives with North Vietnam. In a much murkier case, some people allege that Reagan tried to interfere with Jimmy Carter’s efforts to secure the release of the hostages in Iran. These cases did not lead to criminal investigations for a very obvious reason—they were unknown to law enforcement. Can there really be any doubt that if it had come to the attention of the Justice Department that Anna Chennault, Nixon’s channel to Saigon, had persuaded Nguyen Van Thieu to torpedo the negotiations, the Department would have investigated, and ultimately prosecuted Chennault, as it would eventually prosecute the Watergate burglars?
The Flynn situation is altogether different. We now know that he tried to interfere with American foreign policy with respect to Israel and Russia, and, as the incoming National Security Advisor, he could make credible promises or statements that no ordinary American could make. How strong the case turns out to be will depend on what exactly he did, which is still unclear. While Mueller may decide not to prosecute Flynn for the Logan Act violation because Flynn is cooperating, I suspect that Mueller will pursue this line of inquiry against other officials in the Trump administration.