The Logan Act and its limits

Daniel Hemel and I try to make sense of the Logan Act, and show how it can be (and likely would be) interpreted by courts to avoid constitutional objections, including the worry that it would criminalize normal and reasonable interactions between U.S. citizens and foreign governments.

There is a rapidly growing genre of rebuttals that, in my view, fail to keep separate different considerations.

1. The first argument in these rebuttals is that the Logan Act is a dumb law, and a dead letter because of its dumbness—and probably unconstitutional as well. Hemel and I argue that people who make this argument are interpreting the law in the broadest way possible when in fact a court would interpret it in a narrow way to avoid the dumb consequences they emphasize. Notably, we think that the narrow interpretation would still encompass Flynn, as well as Nixon and a few other historical cases, but not the endless parade of examples (from Jane Fonda to John Boehner) that have recently made the rounds.

2. Another view is that even if the statute remains valid (as it does), Mueller should not charge anyone under it. It would destroy his credibility to charge someone under a statute that has never been enforced. While I’m more sympathetic with this view, the fact is that Trump’s defenders will do everything they can to destroy Mueller’s credibility, and I’m not sure the Logan Act argument will help them at the margin. Mueller may well end up charging people for violating technical election law regulations that are also rarely enforced. It seems to me that, from a political point of view, what matters is not the source of the law but the seriousness of the underlying conduct. If Trump himself or his aides acted in a wrongful way, and in a way that will be regarded as wrongful by the public at large, then the technical details of the statutes that are invoked will matter little.

3. Finally, many of the discussions conflate possible targets of Logan Act charges. I don’t think Mueller will indict Trump himself—if he did, that really would cause a political explosion, and it wouldn’t matter what the statute is, and Mueller can hide behind Justice Department policy that says the president cannot be indicted while in office. When we consider lower-level officials, however, it’s less clear what the political consequences of indictment will be, whether under the Logan Act or any other statute. I do think that if Mueller is unable to bring charges against anyone on substantive grounds, and ends up piling up convictions for lying to the FBI and nothing else, the political consequences for him (and benefits for Trump) will also be considerable.