As most people following politics know, there’s an obscure law called the Logan Act which makes it a crime for unauthorized people to conduct foreign policy with certain governments under specified circumstances. If someone like Michael Flynn negotiates foreign policy with a Russian ambassador, or Ted Kennedy asks the Rooskies to intervene in a U.S. presidential election, or John Kerry sends a message to Mahmoud Abbas not to yield to Trump’s foreign policy demands . . . well, then in theory, those people should be prosecuted if they were not a) government officials when they took those actions, or b) otherwise authorized to take those actions.
But nobody has ever been successfully prosecuted pursuant to the law, which was passed in 1799. Nobody has even been charged with a violation of the act in over 160 years. As a result, it’s become something of a running joke.
As an example of the way the law is usually discussed, take the piece in Politico titled Confessions of a Russiagate Skeptic, in which a panicky Trump-hater reveals his concern that there might be nothing to the Russia investigation. It’s worth reading for the entertainment value alone (Oh my! what if Trump didn’t do anything!), but for now I am focusing on this passage:
And there are aspects of the Russia scandal, too, that don’t quite add up for me. Take Flynn’s plea bargain. As Preet Bharara, the former U.S. attorney for the Southern District of New York, noted after the deal became public, prosecutors usually prefer to charge participants in a conspiracy with charges related to the underlying crime. But Flynn pleaded guilty only to lying to the FBI, which Bharara surmised suggests might mean Mueller didn’t have much on him. It certainly seems unlikely that any prosecutor would charge Flynn for violating the 219-year-old Logan Act, a constitutionally questionable law that has never been tested in court, for his chats with the Russian ambassador. It’s not even clear if the (stupid) idea of using secure Russian communications gear, as Flynn and Trump’s son-in-law Jared Kushner reportedly considered doing, would have been a crime.
This is typical of the way the law is discussed online. Any mention of it is generally accompanied by a snicker and a dismissive attitude.
That is not good. If we’re not going to enforce a law, we should repeal it. And given how Ted Kennedy and John Kerry and Michael Flynn all skated, it’s obvious we’re not going to enforce it.
So get rid of it already.
And if you think the law makes sense, but needs to be tweaked to meet constitutional standards, then do that. There are those who want the courts to limit its reach — but that’s a job for Congress, not the courts. What Congress should not do is simply leave a law on the books that nobody going to enforce. Because that makes a joke of the rule of law.
The problem is that Congress has no real incentive to repeal bad laws. Glenn Reynolds once proposed a House of Congress devoted to nothing but repealing laws:
If the problem with Congress is that nobody sees repealing laws as job No. 1, why not create a legislative body that can only repeal laws?
The growth of laws and regulation in America has reached the point that pretty much everyone is a felon, whether they know it or not. But nobody in Congress gets much in the way of votes by repealing laws. All the institutional pressures point the other way.
So in a third house of Congress — let’s call it the House of Repeal — the only thing that the elected legislators would have the power to do would be to repeal laws, meaning that for them, all the votes, campaign contributions, media exposure and opportunities for hearings would revolve around paring back the federal behemoth.
It’s a good idea. I bet you could think of some laws to submit for possible repeal.
They could start with the Logan Act. Because it’s a danger to the Rule of Law to have a law on the books that everybody laughs at.