When Donald Trump asked Russian hackers to spy on Hillary Clinton on Wednesday, he shocked the nation. But did he break the law?
Some Democrats think so. Specifically, they're accusing Trump of violating the Logan Act, a centuries-old law aimed at keeping private citizens out of foreign affairs.
NEWS: REID says in intvw Trump "can't control his brain," is "being dumb" and violated Logan Act on Russia comments. https://t.co/8wT99rDyrq
— Manu Raju (@mkraju) July 28, 2016
If he did, it'd be a first. The Logan Act has been around since 1798, and no one has ever been found guilty of violating it. It seems its main purpose these past 200 years has been as a political weapon for the opposition party to cast doubt on the other party's foreign policies.
Indeed, it often pops up in history when a politician does something with or relating to a foreign state that the other party deems controversial or unfair. Like now! So let's break down the Logan Act.
Here's what it says, in layman's terms: That a citizen of the United States should not conduct U.S. foreign affairs without the permission of the government of the United States.
Here's the full legalese:
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.
This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.
Here's its origin: It was named after George Logan, a state legislator from Pennsylvania who, in 1798, traveled to France to try to negotiate peace between the U.S. and France. (The two countries started fighting about whether the U.S. owed France its debts in the midst of the French Revolution. It was called the Quasi-War, and there's a whole Wikipedia entry on it here.)
As Michael McConnell, a constitutional law professor with Stanford University, explained to my colleague Philip Bump recently:
Logan went to France after an official delegation from the United States had been met with demands from anonymous French emissaries for a bribe, an incident known as the XYZ Affair. The Federalist Party of President John Adams was advocating for war, but Logan's visit prompted France to take some actions that defused the situation. Disappointment in Adams's subsequent ramping down of tensions led to the act that bears Logan's name.
Apparently the ruling Federalist Party was not happy about Logan trying to end said Quasi-War. When Logan returned him, he found the party had passed a law under his name forbidding any private citizen from conducting foreign affairs without the expressed permission of the government.
Interesting postscript: Despite having a federal law made specifically to rebuke him, Logan went on to serve in the U.S. Senate for six years.
Has anyone ever violated the Logan Act?: A better way to ask that question might be: Has anyone been found guilty of violating the Logan Act? The answer to that is no. Plenty of people have been accused of violating it, but not a single person in the law's 200-plus year history has gone to jail. (More on that later.)
That's partly because the law is vague about which branch of government can give permission for someone to conduct foreign affairs, noted Eugene Volokh with The Volokh Conspiracy blog at The Post in 2015.
It could be the executive branch, it could be Congress. It could even be the president telling just one member of Congress to go do something without telling the others. It seems like are so many loopholes and uncertainties, it's hard for prosecutors to peg down how someone violated this law -- and even harder for courts to make that determination.
It's mostly used as a political weapon: To list just a few recent examples of instances when opponents have pointed to the measure:
- In 2007, when then-House Speaker Nancy Pelosi (D-Calif.) went to Syria to negotiate with President Bashar al-Assad.
- In 2015, when then-House Speaker John Boehner invited Israeli Prime Minister Benjamin Netanyahu to address Congress without President Obama's permission.
- In 2015, when 47 Republican senators, led by Sen. Tom Cotton (R-Ark.) wrote a letter to Iranian leaders warning them not to agree to a nuclear deal the U.S. was negotiating.
- And in 2016, when Republican presidential nominee Donald Trump stared straight into the cameras at a press conference and said: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing."