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What you've got there isn't the US Constitution, it's the Logan Act (U.S.C. stands for "United States Code"). You can read more about it here.



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Common Cents


In 2006, the Congressional Research Service of the Library of Congress published a pretty good survey of the legal and political history of the Logan Act, 18 U.S.C. § 953. It helps to understand that like the Alien & Sedition Acts, the Logan Act grew out of a fit of John Adams’ pique; and like them, the Logan Act almost certainly wouldn’t survive a serious constitutional challenge. But it hasn’t ever been challenged, even at the trial court level, because “[t]here appear to have been no prosecutions under the Act in its more than 200 year history.”

While the federal courts haven’t had a chance to test or limit the applicability of the Logan Act, in 1975 the U.S. State Department — considering contacts between two U.S. Senators and Fidel Castro’s dictatorship in Cuba — wrote this: “Nothing in section 953, however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.” That amounts, of course, to one State Department lawyer’s opinion; it’s not binding precedent, but there is no binding precedent (or, to quote Al Gore from another context, “no controlling legal authority”).

So if there’s a toothless, possibly (perhaps probably) unconstitutional criminal statute on the books, shouldn’t Congress repeal it? I don’t think so; there are dozens, probably hundreds, of federal statutes that can be unconstitutional “as applied” in any given case, and there are probably others that are still on the books even though they’re unconstitutional “on their face.” If the Logan Act gives pause to some who might be on (or over) the verge of improper communications with a foreign government, that’s probably a good thing.

On the other hand, the continued existence of the Logan Act may only prompt possible violators to conceal their actions. It’s obvious that in his 1971 testimony to the Senate Foreign Relations Committee, John Kerry — after wrangling his third Purple Heart to get out of combat in Vietnam, but before attending Boston College Law School — was consciously editing himself to avoid possible self-incrimination under the Logan Act when he was discussing his meetings with Vietcong and North Vietnamese representatives in Paris: “I realize that we cannot negotiate treaties and I realize that even my visits in Paris, precedents had been set by Senator McCarthy and others, in a sense are on the borderline of private individuals negotiating, et cetera.” (Kerry’s bigger potential criminal problem wasn’t from the Logan Act, but from other statutes and the Uniform Code of Military Justice that still applied to him as a reserve officer in the Navy when he met with our enemies to plot an end to the Vietnam War.)

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