What is to be done with the 47 non traitors
The 47 senators who wrote their absurd ignorant improper and (almost) unprecedented letter in an attempt to undermine Nuclear negotiations between Iran and the (5)+1 are not traitors. The Constitution defines treason
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” – Article III section 3. US Constitution (Guy with a quill pen:Philadelphia) 1787.
I am not the only picky nerd who made a big deal about the word — Mark Kleiman did to.
However they did violate the Logan Act (1 Stat. 613, 18 U.S.C. § 953, enacted January 30, 1799) (or Kleiman link above)
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.
The only possible loophole through which they might evade criminal liability is “authority of the United States,” but, as Senators, they have the authority to give the president advice and consent but not to advise the Iranian foreign minister to mistrust what he might have heard from the US secretary of state.
The Logan act is clearly unconstitutional (as noted by Kleiman). It was directed against Dr John Logan who was, at the time, a Pennsylvania state legislator (hence I’m sure covered by some sort of legislator’s immunity). After the controversy, he became a US Senator.
I think that Barack Obama should propose that Congress repeal the clearly unconstitutional Logan Act. I think he should reassure the non-traitorous 47 that he will instruct the Justice Department to exercise prosecutorial discretion and defer action until a bill repealing the Logan Act has been considered. I think his proposal should include a passionate denunciation of The Logan Act and defence of the right of all people (including senators) to warn foreigners not to trust the State Department.
This would not be smart politics, and it would not affect policy, because the Logan Act has never been enforced.
But it sure would be fun.
I totally agree!
It would also be great to see a unanimous vote on something. Anything.
if the president publicly announced “defered prosecution” would the House republicans threaten to shut down the government unless he relents
You want to get rid of the Logan Act? Procecute the 47 under it. Eventually the case will make its way to the Supreme Court.
In the mean time, a fun time can be had by all.
Prosecution under the Logan Act would impose “accountability”. That’s so 20th-century.
Exercise prosecutorial discretion? Outrageous! Unconstitutional! Sue to force him to prosecute!
Left unaddressed here is the possibility that even if the Logan Act was Constitutional it could not be applied to Senators because of the Speech and Debate Clause. From Wiki:
“The Speech or Debate Clause is a clause in the United States Constitution (Article I, Section 6, Clause 1). The clause states that members of both Houses of Congress
…shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”
As to Felony I am not sure that the penalty prescribed under the Logan Act rises to that level. Generally fines and short prison terms are more characteristic of Misdemeanors. On the other hand the standard line falls at a year and a day. So maybe this qualifies.
Still the penalties under the Logan Act clearly would not be typical of someone convicted of Treason.
Bruce,
I think you are wrong. I see no protection for the Senate for these actions.
The 47 aa well as most other members of congress get away with doing alot of things prejudicial to the general welfare and common defense.
For example, the DOD testers identified dozens of shadey practices and failures that would cause reasonable persons to hold off on buying 57 F-35’s with FY 2015 money.
They do a lot worse than show they support AIPAC more than you and me.
” I see no protection for the Senate for these actions.”
“But, critically, the citizen must act “without authority of the United States.” Although most assume that means without authority of the Executive Branch, the Logan Act itself does not specify what this term means, and the State Department told Congress in 1975 that “Nothing in section 953 . . . would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.” That doesn’t mean Members would have immunity under the Constitution’s Speech and Debate Clause; it just means the statute would arguably not apply in the first place.”
http://www.lawfareblog.com/2015/03/logan-act/
“in pursuance of their legislative duties under the Constitution ”
Where in the Constitution does it give Senators the ability to negotiate with foreign officials? Cause, at least in my mind, that is what the letter is doing.
I think we need Bev.