The Logan Act was written for good reasons. Foreign policy works best if it is conducted with a unified strategy. The Founders intentionally vested international diplomacy with the Executive Branch, giving the legislative branch a limited ‘advise and consent’ role for treaties and only to the Senate at time of ratification. Negotiations are officially undertaken by the State Department and its network of Ambassadors and Consuls; the Senate approves the final deal. Thus are the Constitutional concepts of ‘separation of powers’ and ‘checks and balances’ both maintained. This has been the understanding ever since a series of unfortunate incidents during the time of the articles of confederation when several states got in each other’s way. The Logan Act was passed in 1799 and most recently amended in 1994.
More after the squiggle.
The Logan act is relatively simple and straightforward. 18 USC 953 reads:
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.
So, the letter written by Senator Tom Cotton and signed by 46 other Republican Senators was a serious breach of tradition as well a clear and direct violation of the Logan Act. The senators are ‘citizens’. They act without ‘authority’. The letter is ‘correspondence’ with a ‘foreign government’ (the Ayatollahs of Iran). Cotton has stated that his intention was to scuttle the nuclear talks (defeat the measures of the United States). The letter is solid prima facie evidence – plenty for indictment.
Senators do not automatically have authority under the Constitution to negotiate with foreign leaders. In United States v. Curtiss-Wright Export Corporation, 299 U.S. 304 (1936), Justice Sutherland, writes:
"[T]he President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, 'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.'
(
http://en.wikipedia.org/... )
It is also clear that the 47 Senators were not given authority by the President. Indeed, the text of the letter and the administration’s reaction makes it obvious that the Senators oppose the President’s initiative.
But the indictment of 47 sitting Senators (the vast majority of the Republican contingent and including the Senate Majority Leader), as called for in what is currently the most popular citizen petition on Whitehouse.gov (https://petitions.whitehouse.gov//petition/file-charges-against-47-us-senators-violation-logan-act-attempting-undermine-nuclear-agreement/NKQnpJS9 ), would be a greatly more aggressive and confrontational action than anyone who has paid attention to President Obama’s tenure has any reason to expect. While prosecution would be satisfying, it is more than we are likely to get. It just isn’t Obama’s style.
However, sternly worded statements (in the face of such blatantly illegal actions) seem utterly insufficient.
So, what middle path is available? I suggest President Obama officially pardon them all.
An official pardon would be a permanent part of the official records. It acknowledges the seriousness of the crime. It ossifies the guilt of the felonious Senators, preserving the fossil for all time. It would not invoke a constitutional crisis or charges of tyranny. And, it simultaneously pursues the sort of inclusive, bi-partisan, cooperative strategy so characteristic of President Obama’s presidency.
The 47 Senators pulled a political stunt which catastrophically back-fired. They wanted to make a ‘statement’ but instead blatantly broke the law. Putting them forever in the history books as indebted to Barack Obama’s mercy through use of his Presidential discretion seems poetic justice to me as well as a political knock-out punch. It would be (politically) killing them with kindness – a modern demonstration of ‘turning the other cheek’.
For extra pathos, Obama could issue the pardons after consultation with the Pope. It would be an obviously ‘Christian’ act, blessed by Papal approval while benefitting members of a party which has loudly challenged his religious identity.
Checkmate.
I started a petition on whitehouse.gov. http://wh.gov/... Sign it if you agree.