Seth Abramson Profile picture
Dec 4, 2017 51 tweets 10 min read Twitter logo Read on Twitter
(THREAD) Republicans are lying about The Logan Act—what it says; why it exists; why it matters—and their lies are perverting discussion of a key element of the Russia probe. This thread explains The Logan Act is and why it matters now more than ever.

Hope you'll read and share.
1/ First, the basics: The Logan Act (18 U.S. Code § 953: Private Correspondence with Foreign Governments) is a federal criminal statute, and a very serious one. Violation of the statute is a felony, and those convicted of a violation can serve up to three years in federal prison.
2/ Republicans like to give the impression no one's even *thought* about this federal criminal statute since it was passed—incidentally, like *many* statutes—in the first few decades of the nation's existence.

But that's false—it was last amended during the Clinton presidency.
3/ Republicans also give the impression no one's ever been charged with a violation of 18 U.S.C § 953—which is *also* false. More than one person has been charged with violating this federal criminal statute. But no one's ever been convicted. Why? *Not for the reasons you think*.
4/ In most cases of a statute never being applied—for instance, my own state lists Adultery as a Class B Misdemeanor, but never charges anyone—it's because the citizenry has decided the act *shouldn't be illegal*, but the government hasn't gotten around to repealing the statute.
5/ That's not the case with The Logan Act, especially as it's a federal rather than state statute, and one of the two parties in federal government—the Republican party—is willing to try to repeal a statute *scores of times* if it doesn't think it should exist.

(See Obamacare.)
6/ No, the reason The Logan Act has never resulted in a conviction is that there are *almost no situations in which it applies*.

And there are almost no situations in which it applies because there is *almost no one in America so stupid and corrupt* as to try to violate it.
7/ And this is why the Republicans—an untold number of GOP officials and surrogates on an untold number of TV and radio interviews—have been lying about The Logan Act. They say it has to do with "talking" to foreign governments—and they say that to make the Act sound nonsensical.
8/ If The Logan Act prohibited private citizens from "talking" to representatives of foreign governments, it'd be violated *daily* all around the world. And indeed, if the Act said what the GOP now says it does, it would've been repealed just a few months after its 1799 passage.
9/ Instead, The Logan Act has survived repeal for *218 years*—even as the GOP voted to repeal Obamacare MORE THAN 60 TIMES in just the last *6 years*.

The reason the Act survived repeal for 218 years? Simple: it prohibits something EVERYONE IN AMERICA thinks MUST be prohibited.
10/ Here's what The Logan Act says (I've underlined in red two key elements I'll discuss here):
11/ To understand this statute, you first have to understand that every single criminal statute—whether it's a state-level criminal statute or a federal criminal statute—has both an "actus reus" and a "mens rea." The Republicans are counting on no one explaining this to anybody.
12/ The actus reus in a criminal statute is the act the statute describes. The mens rea is the state of mind you must be in when you commit the act for the act to be a crime. If you commit an act but don't also have the state of mind that makes that act a crime, there's no crime.
13/ Remember how I said the GOP lies about The Logan Act? And how the particular way they lie about it is by claiming it prohibits citizens "talking" to foreign governments?

Well, now you see what they did—they've described the "actus reus," but they've *dumped* the "mens rea."
14/ So when you see a Trump ally snarking on The Logan Act on TV, they're not only lying about how serious a federal felony it is, and when the Act was last amended, and whether anyone's been charged with it—they're also making the Act look stupid and pointless by MISSTATING IT.
15/ What The Logan Act *actually* prohibits is corresponding with any foreign government (the actus reus) with the "intent to influence the measures or conduct" (the mens rea) of such a foreign government.

And that's not at all what the Republicans are saying The Logan Act says.
16/ In common parlance, initiating a dialogue with someone whose result you intend to be the influencing of their measures and/or conduct is called a "negotiation."

The Logan Act prohibits private citizens negotiating U.S. policy—measures and/or conduct—with foreign governments.
17/ You're probably starting to see why The Logan Act almost never comes into play in American life: no foreign government would ever be so *stupid* as to think that a random American citizen would be in a *position* to negotiate U.S. policy.

But there's *one* exception to that.
18/ In Tweet #10, I underlined "without authority of the United States." The reason the authors of The Logan Act included this language is that the one—vanishingly rare—situation in which The Logan Act matters is when someone pretends to act WITH AUTHORITY from the United States.
19/ So in what *earthly* situation could a private citizen—say a businessman—credibly claim to be acting "with authority" of the U.S. government? Wouldn't the foreign government receiving that representation just call up *our* government and ask, "Does this person speak for you?"
20/ The answer's *yes*.

Any foreign government dealing with a private U.S. citizen who claimed to be acting "with authority" from the U.S. government would just call up the relevant U.S. official in that arena of negotiation and ask, "Is this person negotiating on your behalf?"
21/ So here's the one exception to that rule (and the one time we'd expect The Logan Act—a criminal statute—to be relevant):

a) The private citizen is on a presidential transition team; and
b) the foreign government is a hostile power that seeks to undermine the U.S. government.
22/ Only a citizen on a presidential transition team could credibly claim to be able to set US policy—because they *will* be able to do so, in a month or so—and only a hostile foreign power *wouldn't* call up our government to check to see if the citizen is acting with authority.
23/ Throughout the 2016 presidential transition period—November 9th, 2016 to January 20th, 2017, a period of two and a half months in which the OBAMA ADMINISTRATION was the validly elected US government with negotiating authority—Trump's people violated The Logan Act REPEATEDLY.
24/ These violations were direct—as in Flynn's case—and also indirect (i.e., part of a criminal conspiracy involving Kushner, McFarland, and, according to The New York Times, "other senior officials" of the Presidential Transition Team that may have included Trump Jr. and Pence).
25/ Moreover, ABC News CORRECTLY reported that Trump HIMSELF directed violations of The Logan Act during the two-and-a-half-month presidential transition, which means he was part of a criminal conspiracy to violate that act and could face up to three years in prison for doing so.
26/ Now you know why Trump *went off* on ABC on Twitter; now you know why various Trump Administration officials (who were on the transition) did so as well; now you know why "law-and-order" Republicans are suddenly *so dedicated* to MISSTATING a serious federal criminal statute.
27/ So the purpose of The Logan Act—a federal criminal statute that's survived repeal for 218 years—is to PREVENT an incoming presidential administration from effectuating a *months-long* "soft coup" of the validly elected administration it's replacing. See how important that is?
28/ And do you understand now why Flynn lied about what he did? And why Pence lied about it? And why Trump lied about it? And why the entire Trump Presidential Transition Team sat silently by while Flynn, Pence, and Trump lied to America about what they all agreed to do together?
29/ They lied because they *knew* they were committing a crime—and were the first members of a presidential transition team in U.S. history to be *so* venal and *so* corrupt and *so* dishonest and so *criminally stupid* as to negotiate U.S. policy without any color of authority.
30/ And as venal, corrupt, dishonest, and criminally stupid as Flynn, Pence, and Trump were—along with the rest of the Presidential Transition Team—they wouldn't have been *able* to violate The Logan Act undetected unless they'd been working directly with a hostile foreign power.
31/ Only a government run by a demented ex-KGB agent and bent on destroying the EU, NATO, and Western democracy would risk retaliation from the VALID U.S. government of the time—the Obama Administration—by negotiating sanctions and Israel policy with traitorous private citizens.
32/ So Trump can—with no basis in fact or reality whatsoever—say that Flynn's actions were legal, but in fact they were ILLEGAL when he committed them and ILLEGAL when (per ABC News) Trump ORDERED them and ILLEGAL when he, Pence, and others told public lies to hide what they did.
33/ Here's the scary part—everything I've described here is the *least* of what Trump, his aides and his associates did. Because in fact, the sanctions negotiations Flynn, Kushner, Trump and others conspired to conduct and then hide during the transition began *well before then*.
34/ The criminal acts—and criminal intents—described in Flynn's Statement of Offense were intended by Mueller as mere appetizers.

He deliberately—any prosecutor or defense lawyer will tell you—left out other offenses and other facts in order to use them against others later on.
35/ What were Logan Act violations (i.e., illegal negotiations) after Trump won the election—once Putin had reason to think Trump could eventually deliver on his policy promises—were before that promises and inducements that prompted Russian criminal attacks on the United States.
36/ "Collusion" is a "lay"—nonlegal—term that encompasses all sorts of nefarious criminal conduct only someone who's a traitor to America would engage in. Felonies—and conspiracies to commit felonies—under The Logan Act are "collusion."

So is Aiding and Abetting Computer Crimes.
37/ You know, and I know, and Donald Trump and his horde know, and certainly Mueller knows, that had Trump, Mike Flynn, Mike Pence and others believed Flynn's conduct to be legal—as Trump now says—Flynn wouldn't have risked FIVE YEARS in FEDERAL PRISON to lie to the FBI about it.
38/ Keep in mind, Trump has already argued that private companies should be able to *bribe* foreign governments—so we already *know* he thinks private individuals should be able to do illegal things in secret with foreign governments to get what they want.…
39/ So without misunderstanding—without wrongly thinking The Logan Act is "all Mueller has" on Trump & Co., rather than a side dish—understand that Trump, Pence, Flynn and others risked years in prison because what they did last year *is* enough for both prison *and* impeachment.
40/ U.S. media and U.S. attorneys have what must be considered an obligation—the former under the rights granted them by the First Amendment, the latter under our oaths to uphold the Constitution—to *fight back* when politicians are covering up crimes by misstating the law. {end}
PS/ I didn't underline the "disputes or controversies" or "defeat the measures" elements of 18 U.S.C § 953 because they so *clearly* apply.

Russian sanctions are THE foreign policy dispute and measure of the moment—and Israel policy THE international controversy of my lifetime.
PS2/ Below is the lobbyist exception to 18 U.S.C § 953, which helps keep the law from being unconstitutionally over-broad or vague. If a foreign government has harmed you—in your personal capacity, or an employer for whom you're an agent—you can seek redress from that government.
PS3/ This is what many—including Noah Feldman, who wrote a piece on The Logan Act for Bloomberg in February—misunderstand. The Logan Act—per its language—is *only* triggered if you attempt to negotiate the outcome of a dispute a foreign government has *with the U.S. government*.
PS4/ Feldman asked at the time, "What if I'm simply speaking as a private citizen to the prime minister of a foreign country about its relations with the U.S. and those relations sometimes involve disagreement?" Well, The Logan Act *manifestly* is not triggered in that situation.
PS5/ Note Feldman—perhaps with fine intentions—did what Republicans are doing as to the "actus reus" of The Logan Act: he changed "intent to influence measures or conduct" (a mens rea) to "speaking" (no mens rea) and "disputes or controversies" (specific) to "relations" (vague).
PS6/ Nothing in the Act prevents "speaking" to foreign governments—it's *negotiation*. Nothing in the Act prevents redressing a harm (or possible harm) aimed at *you*—only interfering in disputes between governments. Nothing prevents talking "relations"—rather, concrete disputes.
PS7/ *That's* why high-powered attorneys at the DOJ looked at Mike Flynn's behavior in December and *did* see a possible Logan Act violation: because they saw a) a private citizen b) with no authority c) negotiating an inter-governmental dispute d) relating to a concrete measure.
PS8/ *That's* why Byron York's recent piece repeats every lie about the Act I've been discussing. He says no one's been prosecuted under it; multiple people have. He says it's "dismissed"; it was amended in 1994. He says it criminalizes "contacts"; it criminalizes "negotiation."
PS9/ Moreover, though everything we've seen in court filings confirms the Logan Act issue *isn't* the end-point of the Mueller probe—rather, just an aperitif—York and other Trump apologists are at great pains to position it as Mueller's "big reveal."

They *well know* it is not.
PS10/ If The Logan Act were unconstitutional, Congress had 218 years to repeal it—as they've repealed hundreds of laws. They didn't do so because a) they know exactly what it prohibits, and b) their assumption—and everyone's—has been no one would be *stupid enough* to violate it.

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