The last few weeks of December in 1798 were bogged down by the prolonged wrangling over the impeachment and subsequent Senate trial of U.S. Senator William Blount, a signer of the Constitution and first official to be impeached by the House of Representatives.
When House business resumed the day after Christmas, U.S. Representative Roger Griswold arose with the only business for the day. He proposed to lay a short resolution on the table:
USURPATION OF EXECUTIVE POWER Mr. [Roger] GRISWOLD said he wished to lay a resolution upon the table, relative to a subject which, in his opinion, deserves consideration. Its object is to punish a crime which goes to the destruction of the Executive power of the Government. He meant that description of crime which arises from an inference of individual citizens in the negotiations of our Executive with foreign Governments. As every gentleman must be satisfied of the importance of this object, and the propriety of making some provision with respect to it, he trusted it would meet with no opposition. The resolution was in the following words: Resolved, That a committee be appointed to inquire into the expediency of amending the… to extend the penalties, if need be, to all persons, citizens of the United States, who shall usurp the Executive authority of this Government, by commencing or carrying on any correspondence with the Governments of any foreign prince or state, relating to controversies or disputes which do or shall exist between such prince or state, and the United States. ORDERED to lie on the table -- Annals of Congress, pp. 2488, 2489
Griswold was correct in his assessment that "every gentleman must be satisfied of the importance of this object," because this law, which became known as the Logan Act, flew through both chambers of Congress and was signed into law by President Adams in only 35 days:
§ 953. Private correspondence with foreign governments. 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. This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.This law came from the actions of Dr. George Logan, acting as an independent negotiator during the Quasi-War with France.
Logan argued that although he was not acting in an official capacity and he was not there to explain U.S. policy, his presence could help by suggesting ways of greater cooperation between the U.S. and France.
While Logan's actions had the appearance of being successful, it was a direct usurpation of the Executive Branch's authority to negotiate for the United States.
The Logan Act was designed to keep well-intending (or even hostile) citizens from intervening in the constitutionally-mandated functions of our government.
Headlines continue to buzz with the open letter sent by 47 Republican U.S. senators to the leaders of the Islamic Republic of Iran.
By the letter of the Logan Act, this open-letter publicity stunt was clearly unlawful. First, while an open letter, the Logan Act forbids even indirect correspondence. Second, the letter explicitly states that it is trying to influence Iran's decisions by informing them of the features of our Constitution.
The intent of the Logan Act was to preserve the natural power of the executive branch to conduct all negotiations, which these senators clearly violated as well.While it is unlikely that these 47 senators will ever be charged or face more than the public humiliation of the press for their actions, the Founding Fathers of the fifth Congress would have taken extraordinary offense to this blatant sabotaging of the Executive Branch.
They faced this form of "embarrassment" and swiftly moved to outlaw these kind of actions from our public discourse.
As late as 2005, the U.S. House issued memorandum to its members explaining how to remain in compliance with the Logan Act (and others) upon leaving a government position. This isn't some "gotcha" political stunt; it has been routinely revisited by both chambers to regulate the actions of its present and past members.
It's also not some obscure law being misapplied in an attempt to embarrass these senators; the very reason for the law itself was to prevent anyone from usurping the power of the executive branch when dealing with foreign powers.
Almost comically, the letter also highlights a problem within our system: the senators openly acknowledged that many of them would be around for decades after President Obama leaves office.
Term limits are generally considered a Republican value, but here these senators flaunt the fact that Obama has only two years left, while they have unlimited time to weigh in on the American political process.
Many of these same senators painted President Obama with a wide-brush during the last midterm election, declaring him to be a lawless president who ignores our laws and the Constitution.
Unfortunately, the tables have turned.
Perhaps the U.S. Senate needs to send out another memorandum (maybe even an open letter), informing its members on how the Constitution works and what their responsibilities are in obeying it.
Image: U.S. Senator Tom Cotton (R-Ark.) / Source: AP