More than 10,000 signatories have endorsed a White House petition calling for the federal prosecution of Senator Tom Cotton and 46 other Republican senators who addressed an open letter to Iran leaders advising them that, in regards to nuclear negotiations with the Obama administration, they "may not fully understand our constitutional system." Legal experts have been on fire discussing the constitutional and international-law implications of the letter, but the petition opens up a new front: Can Cotton and his cosigners be federally prosecuted for the move?
Even if the petition reached the 100,000-signature mark required for the White House to act—remember the Justin Bieber response?—a prosecution won’t happen because the federal government enjoys wide latitude to enforce the law as it sees fit. And the law that would ostensibly apply here—the Logan Act, which broadly prohibits citizens from engaging a foreign government in its dealings with the U.S.—is a criminal statute where federal authorities hold undisputed prosecutorial discretion: they call the shots as to which cases to bring. It’s not something you just rally around and expect prosecutors to respond.
This explains why past Logan Act gamesmanship against members of Congress has been largely ignored, as when demands to prosecute Congresswoman Nancy Pelosi for meeting with Syrian President Bashar Assad fell on deaf ears, or when then-Senator Barack Obama made a trip to Iraq and was soon accused of illegality. To illustrate the gamesmanship, Breitbart compiled a list of times when Democrats should’ve been slapped with Logan Act prosecutions, but weren’t. Like calling Cotton a traitor, it seems Logan Act trutherism is more a product of political winds than anything else.
But assuming prosecutors did follow the winds, it’s doubtful they would even bother with the largely disavowed Logan Act. Not only has the law sat in the books collecting dust since 1803—the last year it was invoked for aprosecution that ultimately failed—but American University law professor Steve Vladeck notes that, under contemporary understanding of constitutional law, the statute is too vague to give clear notice of what it prohibits, as well as a restriction on speech that likely violates the First Amendment. And Georgetown law professor Marty Lederman has pointed out that, constitutional concerns aside, the law has rightly “lapsed into desuetude”—that is, it’s unenforceable by virtue of its non-enforcement. As in, forgotten forever.
Far better that way, because if one were to enforce the letter of the law verbatim, “any citizen” could be caught in the Logan Act’s wide net of undefined vagaries—even, say, a well-meaning lawyer advising a foreign government on a trade deal with the United States. Or an immigrant writing her country of origin to request diplomatic pressure on the United States to enact comprehensive immigration reform. The possibilities are endless.
As constitutional scholar Louis Fisher once put it, “If ever there is a dead letter in the law, it is the Logan Act and the stilted thinking that inspired it.” Indeed, it is similar stilted thinking that calls for the criminalization of Cotton’s Iran letter—a politically and constitutionally questionable move, sure, but far removed from the fears of executive usurpation that inspired enactment of this felony more than 200 years ago.
Correction: Marty Lederman is a law professor at Georgetown, not Cornell.