Flynn should not be tried under the Logan Act: Column

Those gleefully claiming that retired Army lieutenant general Michael Flynn, after resigning as National Security Adviser, should be subject to investigation under the “Logan Act” need to actually read that law. It is obviously and profoundly unconstitutional.

The Logan Act dates to 1799 and is a product, like the Alien and Sedition Acts, of the United States’ efforts to deal with one of its first great foreign policy crises, the French Revolution. That event divided Americans like no other since our own Revolution twenty years before, and destroyed for a time the long friendship of John Adams and Thomas Jefferson.

Prompted by an American citizen, George Logan, discussing U.S. policy with representatives of the French Revolutionary government, the law today criminalizes “any correspondence or intercourse” by a U.S. citizen wherever located, “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.”

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The Logan Act’s constitutionality has never been tested before the Supreme Court, but there is little doubt that it comes up short. Unlike the Espionage Act, for example, the Logan Act purports to regulate pure speech — efforts by any U.S. citizens to influence a foreign government or its officials — and does so in the broadest possible manner.

It applies to any alleged “controversy” between the United States and a foreign government, and covers communications by Americans within and without the United States. Thus, for example, anyone who — without authorization from the U.S. government — addresses foreign diplomats on any subject of “controversy” between the United States and their country, with an intent to influence their views, commits a crime. This is true whether or not the effort was on a private telephone conversation with the Russian ambassador, through a public speech before the Council on Foreign Relations attended by foreign diplomats, or networking by non-governmental U.S. attendees at a global climate change conference in Paris.

Not only does the Logan Act regulate speech, but it is the most pernicious type of such regulation — a facial regulation of content. As defined in 2015 by the Supreme Court in Reed v. Town of Gilbert, this is a law that “applies to particular speech because of the topic discussed or the idea or message expressed.” Here, the law forbids not just communications with foreign governments or officials, but also efforts to influence them about a dispute or controversy with the United States.

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Such laws are presumptively unconstitutional under the First Amendment, unless the government can show that they are narrowly tailored to serve a compelling governmental interest. The Logan Act is not narrowly tailored. While this point may be debated, the United States might arguably have a “compelling” interest in preventing American citizens from deliberately seeking to interfere with ongoing diplomatic negotiations with a foreign country, but it would be frivolous to argue that it has such a compelling interest with regard to “any dispute or controversies” with other countries.

The Logan Act must, therefore, fail a constitutional review. And, this likely explains why only a handful of prosecutions have ever been attempted under the statute, and why these have never actually made it into a courtroom. Congress should either repeal the Logan Act or it should be challenged in court and struck down.

David B. Rivkin, Jr. and Lee A. Casey practice constitutional and appellate law and served in the White House Counsel’s Office and U.S. Justice Department under Presidents Reagan and George H.W. Bush.

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