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.