Former national security adviser Michael Flynn’s guilty plea in federal court last week has awoken interest in the long-dormant Logan Act. We argued in a New York Times op-ed on Monday that members of the Trump transition team, including Flynn, ran afoul of that statute in December 2016 when they urged Russia to veto a U.N. Security Council resolution condemning Israeli settlements in East Jerusalem and the West Bank. Several others have raised the prospect of Logan Act liability as well.
President Trump’s defenders have responded that the Logan Act is “overly broad” to the point of being unconstitutional. Other scholars and commentators have expressed varying degrees of sympathy for this position. Yet as the Supreme Court has said, “It has long been our practice ... , before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.” Here, we consider whether the Logan Act can be limited so as to address legitimate concerns about its breadth.
Based on the text of the Logan Act, its legislative history, and the executive branch’s interpretation of the statute in the past, we believe that the Logan Act is indeed susceptible to a narrow construction. We explain how courts could and likely would construe the statute so as to avoid unconstitutional applications. The Logan Act can be understood to prohibit secret efforts aimed at undermining the current administration’s foreign policy without also criminalizing a wide array of political interactions between U.S. citizens and foreign officials.
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