It is possible for two things to be true at once: It is not helpful for private citizens (even ones who are former government officials) to be negotiating with foreign leaders –and those citizens have a First Amendment right to talk to whomever they want about anything they want.
One such citizen, former Senator and Secretary of State John Kerry, is in the news promoting his new memoir, Every Day is Extra. During a lengthy appearance on the Hugh Hewitt radio show, Kerry admitted that he still speaks with Iranian Foreign Minister Javad Zarif. Kerry told Hewitt that in the “three or four times” he’s seen Zarif since leaving office, he’s “tried to elicit from him what Iran might be willing to do in order to change the dynamic in the Middle East for the better.”
Violating the Logan Act: a bipartisan pastime
Kerry said he believes the administration of President Donald Trump is “hell bent for leather determined to pursue a regime change strategy to bring the economy down and try to isolate further,” rather than negotiate any kind of settlement with the Iranian government. He defended his actions saying he’s pressing Zarif on Iran’s export of violence through Hezbollah, Syrian President Bashar al-Assad, and the Houthi regime in Yemen.
Conservative outlets are predictably up in arms over this admission. I’m not losing any sleep over it, though. I didn’t complain when Sen. Tom Cotton drafted a letter to “the Leaders of the Islamic Republic of Iran,” signed by 47 Senate Republicans, in the hopes that any agreement President Barack Obama signed would be worthless without Senate ratification. And I certainly didn’t complain when Michael Flynn, as a member of Trump’s transition team and his designated National Security Adviser, was talking to Russian Ambassador Sergey Kislyak.
But the left – in the case of Cotton and Flynn – and now the right – in the case of Kerry – are screaming “Logan Act!”
the (silly) history behind the logan act
The law, as discussed here in December, dates to 1799 during the term of President John Adams. It makes it a crime when a private citizen “directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or 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.” I said it in December and I’ll say it again: The Logan Act is a silly law, passed at a paranoid time in American history, that flies in the face of the First Amendment.
I will be watching to see if those who were upset about Flynn’s actions – taken as a representative of the man who would become president in a month – are as upset about Kerry’s actions. After all, Kerry has been out of government for almost two years and will likely never hold a government post again. I’ll be watching because it will be an indicator of the rampant hypocrisy that pervades American politics today. But beyond that, it won’t matter.
Attorney General Jeff Sessions is not about to prosecute John Kerry. Flynn got in legal trouble for lying to the FBI about the nature of his calls as they related to the investigation into Russia’s interference in the 2016 presidential elections. He was not charged with a Logan Act violation. Had he been, he would be only the third person so charged in the two centuries of the law’s existence.
The law belongs on the ash heap of history with the Fugitive Slave Act and prohibition. Congress should just repeal it so we don’t have to listen to any more armchair pundits scream every time a congressman, senator, or former official takes a trip overseas.
