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John Kerry and the Logan Act

The Logan Act won’t go away. Most recently, prominent commentators criticized former Secretary of State John Kerry’s conversations with the leaders of Iran, arguing that such discussions violated the Logan Act.

As a matter of policy, Secretary Kerry’s meetings in Tehran were inappropriate. The Obama-Kerry approach to Iran looks worse every day. But this should be a topic of political debate, not of criminal law. In a world of instantaneous global communications, the Logan Act is an unworkable anachronism which should be repealed.

The Logan Act is named after Dr. George Logan, a physician who, during the administration of President John Adams, took it upon himself to talk in France with the revolutionary regime which had overthrown King Louis XVI. The Federalists were outraged by what they perceived as Dr. Logan’s freelance diplomacy. In response, they made it a crime under U.S. law for a U.S. citizen to “directly or indirectly” conduct “any correspondence or intercourse with any foreign government or any officer or agent thereof…to defeat the measures of the United States.”

The Logan Act has rarely been enforced. Its constitutionality has been questioned. But the Logan Act remains on the books and periodically is invoked in the context of foreign policy controversies like Secretary Kerry’s recent discussions with Iranian officials.

If the Logan Act was ever justified, it is unworkable today in a world of instantaneous worldwide communications. Today, everybody is communicating electronically with everyone else across the globe. When Secretary Kerry makes a statement on social media or to news outlets disparaging the foreign policy of the Trump Administration, that statement is known everywhere seconds later – including the halls of government in Tehran and other capitals around the globe.

Similarly, when then President-elect Trump tweeted his opposition to the post-election posture of the Obama Administration towards Israel, that opposition became known instantly throughout the world including every government in the Middle East.

This is a profoundly different world from the world of John Adams and the Federalists.

It is unseemly for Secretary Kerry to manifest his opposition to current U.S. policy in personal meetings with officers of the government of Iran. However, there is no indication that in these meetings Secretary Kerry improperly disclosed confidential information or engaged in any similar activity.

Unseemliness should not be a criminal offense.

Since it is in practice not enforced, the Logan Act has become nothing more than a rhetorical bludgeon, casting in criminal terms matters which should be debated as questions of foreign policy, not criminal law. Senator Kerry’s meetings in Tehran showed bad judgment, as did his handling of Iran while he was Secretary of State. However, we should discuss such matters without the ghost of Dr. Logan peering over our shoulders. In a world of instantaneous, global communications, Congress should repeal the Logan Act.

Featured Image: “Justice” by WilliamCho. CC0 via Pixabay. 

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