NYT's Shows Sudden Concern for Logan Act Fact-Checking, With John Kerry the Target

May 8th, 2018 6:10 PM

Former Democratic Secretary of State John Kerry has been doing a little free-lance meddling with Iranian ministers on behalf of the now-kaput Iran deal, and an unhappy Trump accused Kerry on Twitter of “possible illegal Shadow Diplomacy” (i.e. violating the Logan Act). New York Times fact-checker Linda Qiu pounced: “Trump Lobs Legal Threat At Kerry. Scholars Shrug.

Qiu’s fact-check re: the Logan Act is fair on its face, but the sudden concern is suspect, given The Times had previously used the Logan Act as a rhetorical weapon against President Trump’s former national Security Adviser Michael Flynn, in both news and opinion pieces:

Mr. Trump did not specify what was illegal about Mr. Kerry’s actions, and the White House would not comment. But Rudolph W. Giuliani, the president’s personal lawyer, accused Mr. Kerry of “violating the Logan Act,” adding, “And nobody seems to care.”

As The New York Times’s Charlie Savage has previously explained:

The Logan Act is a 1799 statute that bars private citizens from interfering with diplomatic relations between the United States and foreign governments. It makes it a felony, punishable by a fine or imprisonment of up to three years, if an American citizen, without government authorization, interacts “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.”


The legal scholars interviewed by The Times all stressed that the law is a paper tiger that has never been seriously enforced. (Two said it may be unconstitutional.)

Still, the Logan Act has occasionally resurfaced as a political cudgel:

It certainly has. While legal reporter Savage mostly noted it was a “dead letter” in his reporting, the paper’s political staff often took the now silly Logan Act pretty seriously, if it could get a Trump official, Michael Flynn, in trouble.

In 2017, The Times often tied the Logan Act to members of Trump’s transition team, the main target being Flynn’s phone calls to then-Russian ambassador to the U.S., Sergey Kislyak. Here's an excerpt from a January 2017 story:

Some commentators have raised the question of whether such efforts by Mr. Flynn and the Trump transition team to lobby foreign governments in ways that conflicted with the official policy of the United States under the Obama administration before they took power were a violation of the Logan Act. That is a 1799 law that bars private citizens from interfering with diplomatic relations between the United States and foreign governments. But this statute has raised constitutional concerns and is generally considered a dead letter, meaning it remains on the books but is defunct.

A December 2017 op-ed, “Why the Trump Team Should Fear the Logan Act,” by Daniel Hemel and Eric Posner, stated: “While Mr. Flynn pleaded guilty to only one count of making materially false statements, his admissions leave little doubt that he also violated a federal criminal statute known as the Logan Act.”

Also, a February 2017 NYT editorial stated: “Sally Yates, the acting attorney general, judged an intercepted call “highly significant” and “potentially illegal” under the Logan Act, which bars private citizens from interfering in diplomatic disputes with other countries.” There was no mitigating context acknowledging the act is considered a “dead letter” and most likely unconstitutional.

Finally, here's a Logan Act mention in a January 2017 news report:

Several news organizations reported on Thursday on the calls between the two men. David Ignatius of The Washington Post suggested it could have violated the Logan Act, a 218-year-old law that bars American citizens from negotiating without authorization with foreign governments that have a dispute with the United States.