Someone, somewhere inside the Beltway, will likely become the first American in modern times to be charged with Logan Act violations. And I can almost guarantee you it will be in our lifetime.
After his testimony before Congress last week, current Biden administration climate envoy and former Secretary of State John Kerry made a good case that it might as well be him.
The Logan Act, enacted in 1799, reads as follows: “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.”
That said, the Logan Act’s application for those inside the Beltway is a bit like a law against marijuana smoking in a venue hosting a Grateful Dead concert: fairly well spelled-out in the statutes, but rarely, if ever, enforced. As CNN noted, “There have been few cases when someone has been indicted for violating the act. These cases took place in the 1800s, and no one was ever convicted.”
However, the left was more than willing to talk about using the Logan Act promiscuously against Trump administration officials, particularly former National Security Advisor Michael Flynn, for his discussions with Russia officials before Donald Trump took office as the 45th president of the United States. As CNN reported in December 2017, a former prosecutor with ties to then-Special Counsel Robert Mueller’s, called Flynn’s contact with Russia “facially” in violation of the Logan Act.
Flynn’s contact with Russia over a U.N. resolution during which the outgoing Obama administration was in conflict over Israel “seems to violate what the Logan Act intended to prevent,” said Michael Zeldin, former special assistant to Mueller in the Justice Department.
However, the left has cooled off on the idea of using the Logan Act over the past few years, particularly since 1) Donald Trump has accused Kerry of violating it in his discussions with Tehran over the Iranian nuclear deal and 2) Kerry himself has all but admitted to behavior that, to put it in Zeldin’s words, “seems to violate what the Logan Act intended to prevent,” which would be a felony.
In case you missed it, Kerry basically admitted it again on Thursday in his testimony before Congress, when he told GOP Rep. Michael Waltz of Florida that he had at least three secret meetings with former Iranian foreign minister Mohammad Javad Zarif in an attempt to salvage the nuclear deal.
Waltz pointed to a 2018 interview in which he said Kerry “admitted to speaking with Iranian foreign minister Zarif ‘three or four times’ from the start of the previous administration.” He then asked whether conversations with the foreign minister had taken place over WhatsApp, Signal or other messaging services.
“I don’t recall how I communicated with him,” Kerry said. However, he didn’t deny communications, and said that “shadow diplomacy” is permissible, even as a private citizen.
He also disputed a New York Times report citing leaked audio in which “Zarif said you told him that Israel attacked Iranian assets in Syria at least — quote — ‘at least 200 times,’” as Waltz said: “Zarif was surprised you would reveal such sensitive information.”
However, Kerry’s denial was a bit murky when he said, “We made it crystal clear in a release that we put out that that never took place.”
“It was at a time when there was public discussion of those attacks … it was in public circulation. I don’t know what he’s confusing or what he did, but I can tell you that I never had that conversation,” Kerry said.
Waltz then asked how he would feel if a former Trump administration official were to interfere with the policy of the Biden administration.
Kerry responded, “I’m not going to speak to any hypotheticals, but I can tell you, I never engaged in that.”
“Shadow diplomacy undermines American goals,” Waltz responded.
“Shadow diplomacy, depending on what it involves — shadow diplomacy has also saved us from a war,” Kerry shot back. “If you look at 1963, with Jack, with the Cuban missile crisis, it was behind the scenes.”
Maybe I’m not brushed up on my 20th century history, but I don’t remember anyone involved in the Nixon campaign having discussions with Cuban officials during that 1962 crisis and effectively defusing the conflict. Furthermore, as Waltz pointed out, “I would posture that your shadow diplomacy now has us on the verge of Iran having a nuclear weapon.”
This is because, effectively, Kerry’s “shadow diplomacy” was meant to salvage the Iranian nuclear deal, according to a CNN “fact check” of a 2019 Trump statement in which the former president said Kerry violated the Logan Act.
“A source close to the former secretary of state said Kerry hasn’t talked with Iranian officials since President Trump announced the U.S. was pulling out of the Iran deal last year,” CNN noted in 2019. “Prior to the withdrawal, the source said Kerry did communicate with the Iranians to urge them to stay in the deal.