The rhetoric is dramatic: treason, sedition, traitorousness. Is it melodramatic though, or does the GOP Senate members’ initiative in writing to Iran’s state department merit this characterization? Was the communication illegal? Was it unprecedented?
In order to answer the first and more important of those two questions, you probably have to answer the second one first as in legal matters, precedent usually takes precedence. So, has a senator or a group of senators ever orchestrated anything similar in type, and if similar in type, also similar in degree? A separate but equal question is if so, was that action brought before a court, and again if so, what were the court’s findings?
Everyone is an armchair Constitutional lawyer this week, and I am no exception. So please, feel free to object. Anecdotally, and admittedly without contemporary US history being my specialty, I can’t recall anything much like it in my now considerable lifetime. Under Bush, there was nothing close to this level of senatorial mutiny in terms of submarining ongoing foreign policy negotiations. Nor was there with Clinton. Neither Bob Dole nor Harry Reid would have condoned anything of that nature.
I am not an eidetic accumulator of political events chronology, but I try to pay attention along the way, and I cannot remember any similar act over the course of these past two administrations that approach this level of hubris and disregard for the president in an ongoing foreign policy negotiation. Add Obama’s first term, with plenty of venom but never this level of diplomatic sabotage, and you’ve got at least twenty years without a remotely analogous act of such wanton foreign policy disruption.
I had a chat with a friend about this, and he being about my vintage but having lived a life that didn’t leave his fine-aged mind with enough holes in it to serve as a wind chime on breezy days, he mentioned George McGovern’s trip to Cuba in 1975 in direct defiance of the very staunchly defended embargo.
On May 5, 1975, McGovern set off to Cuba and spent three days there in meetings with high-level officials including Castro himself. McGovern had been a longtime proponent of normalizing relations with Cuba, and as the embargo’s actual demise and its results become manifest, I hope history will applaud McGovern as having been ahead on this issue.
Some members of Congress, however, decidedly did not applaud McGovern’s trip, one must assume because of an utter disinterest in baseball, cigars and fantastic jazz piano. So persistent was the chorus of boos that State Department attention was brought to it, but the agency elected to pass on indicting McGovern under the Logan Act, stating, “The clear intent of this provision is to prohibit unauthorized persons from intervening in disputes between the United States and foreign governments. Nothing in section 953 [Logan Act], however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution. In the case of Senator McGovern … the executive branch, although it did not in any way encourage the Senator to go to Cuba, was fully informed of the nature and purpose of (the) visit, and had validated (his) passport for travel to that country.”
There has only been one very spurious indictment under the Logan Act at the turn of the 19th century, utterly misapplied, and it was not pursued and quickly forgotten. Reagan waved the Logan Act a couple of times during his presidency, mostly as a rhetorical cudgel, and Peter King artlessly characterized Nancy Pelosi’s dialog with Syrian officials as a violation of the Logan Act. A movement King fostered to cripple funding for these meetings petered out quickly, as well as King’s pursuit of indicting Pelosi under the Logan Act.
The Logan Act is rarely evoked, even as a tool for bringing a certain drama to foreign policy discrepancies, kind of like saying, “J’accuse!” except not in French. As far as I can tell, the furthest pursuit of the Logan Act in our history is in the McGovern case. Following the initial template I laid out for myself in this essay, the question becomes, “Is the poison pen letter from the 47 senators of the same type as the McGovern visit, and if so, was it the same degree?”
I have to conclude that it was wholly another type. The first key difference is the openness of the communication. The letter from the 47 senators was drafted and sent, and the White House was briefed simultaneously, whereas if you are looking for documentation of implied consent, McGovern’s passport was of course validated by the United States for the trip. There was regular communication between McGovern and the rest of the senate and with the Ford White House beforehand, albeit without approval or certainly any “attaboys.”
After State Department scrutiny - the Ford state department let’s remember - the sought indictment was more or less brushed away. Cuba policy was McGovern’s pet issue and the subject of his new report, and he was among the nation’s leading experts on all things Cuba. McGovern's meetings were in no way seeking to guide specific items of foreign policy in the direction of normalization. Rather he was on a fact-finding mission, seeking to inform his perspective with a deeper understanding of Cuba, and the disposition of its leaders and citizens.
The 47 senators who signed the letter touted no such standing, no such gravitas or expertise on the subject of Iran or Middle East affairs in general, no specialized experience in defense, treaties or even tangentially related areas of concentration that might earn them consideration for butting into the negotiations like they did. What they have solely in common is a collusive nature and an utter beholdenness to partisan politics.
As to degree, the letter from the 47 senators, ironically the same percentage of ‘takers’ Mitt Romney believes to comprise our nation, was far more pernicious than anything McGovern’s talks with Cuban officials in their most cynical interpretation could possibly have had as their result. This purposeful submarining of an ongoing nuclear arms treaty is about as insane as I have ever seen America get. The bombastic intrusion was boorish and clumsy and at the same time dangerous at an existential level for all of the Middle East.
Though it’s already been shown to you by my fellow armchair Constitutional lawyers with varying levels of pomp and bluster I am sure, here it is again, the Logan Act:
“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.”
If you want to chop out the juicy part as far as these proceedings are concerned, here you go: “…with intent to influence the measures or conduct of any foreign government…” It’s textbook, really. This is what The Logan Act was written for. Imagine if the executive branch had one foreign policy, and the US Senate had another. Why don’t we give the House of Representatives one of its own while we’re at it, and just so they don’t feel left out, let’s let Hall & Oates have their own foreign policy as well. Yeah. Hall & Oates. I could go for that.
The GOP senators are of course not stupid. They are merely cynical, and they are, rightly I think, counting on the administration’s reticence to pick this hill to die on, especially when the Logan Act’s as yet untried teeth would be its chief weapon. The 47 got their licks in and were able to at least on its surface disrupt The United States’ communication with Iran a little bit, so seeing as there will likely not be indictments sought under the Logan Act, I think the GOP may have won this round. But kind of like someone who wins a round at a pit bull fight; is it really anything to be proud of?