The Iran Letter and the Logan Act

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Follow @lawfareblog The second-day story about the letter by 47 Republican Senators to the government of Iran that Jack's discussed here and here has shifted to whether these Senators have violated the Logan Act--as Peter Spiro suggested in this post over at Opinio Juris. Before folks get too carried away with this idea, let me offer three significant caveats about the Logan Act--each of which are rather significant legal--and not just political--obstacles to any prosecution thereunder. I.  "Without authority of the United States" The text of the Logan Act makes it a crime for citizens to engage in "any correspondence or intercourse with any foreign government . . . with intent to influence the measures or conduct of any foreign government . . . in relation to any disputes or controversies with the United States." As Peter explained yesterday, the Senators' letter certainly seems to fall within this language. But, critically, the citizen must act "without authority of the United States." Although most assume that means without authority of the Executive Branch, the Logan Act itself does not specify what this term means, and the State Department told Congress in 1975 that "Nothing in section 953 . . . would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution." That doesn't mean Members would have immunity under the Constitution's Speech and Debate Clause; it just means the statute would arguably not apply in the first place. Combined with the rule of lenity and the constitutional concerns identified below, it seems likely that contemporary and/or future courts would interpret this provision to not apply to such official communications from Congress. II.  The First Amendment (and the Fifth) The Logan Act, recall, was written in 1799, well over a century before the rise of modern First (and Fifth) Amendment doctrine with regard to protections for speech and against prosecutions for unclear misconduct. It seems quite likely, as one district court suggested in passing in 1964, that the terms of the statute are both unconstitutionally vague and in any event unlikely to survive the far stricter standards contemporary courts place on such content-based restrictions on speech. Thus, even if the Act does encompass official communications from Members of Congress acting within their legislative capacity, it seems likely that it would not survive modern First Amendment scrutiny were it to be invoked in such a case. III.  Desuetude Finally, as Peter noted yesterday, the Logan Act has never been successfully used (indeed, the last indictment under the Act was in--not a typo--1803). Although most assume this is just a practical obstacle to a contemporary prosecution, it's worth reminding folks about "desuetude"--the legal doctrine pursuant to which statutes (especially criminal ones) may lapse if they are never enforced (interested readers should check out a fantastic 2006 student note on the subject in the Harvard Law Review). If ever there was a case in which desuetude could be a successful defense to a federal criminal prosecution, I have to think that this would be it. Of course, there are tons of practical and political obstacles to a Logan Act prosecution of these 47 Senators (or any other Member of Congress) as well. My point is simply to suggest that we needn't even have that conversation given the (in my view insurmountable) legal roadblocks to any such Logan Act proceedings today. That doesn't make the letter any less problematic; it just suggests its authors may not reasonably fear prosecution for writing it.