In May, The Wall Street Journal published an opinion piece by Charles Lipson titled “Repeal the Logan Act.”
The Logan Act, for the unfamiliar, is a law from 1799 that has never yielded a conviction. In fact, it’s led to only two charges, both during the 19th century.
The law makes it illegal for any private individual to engage in “correspondence or intercourse with any foreign government … in relation to any disputes or controversies with the United States, or to defeat the measures of the United States.”
Despite the lack of convictions, the Logan Act made it possible for the U.S. government to target Michael Flynn, the former Trump administration national security adviser who was investigated for having a phone call with Russian ambassador Sergey Kislyak before President Donald Trump took office.
Flynn would plead guilty to lying to an FBI agent, although he would later move to drop the plea and the Department of Justice wouldn’t pursue the case.
“Since the law is hardly ever enforced, why not leave it alone?” wrote Lipson, a University of Chicago professor emeritus. “Because while the law is still on the books, it can always be trotted out and used selectively, even maliciously. That’s exactly what happened to Mr. Flynn when James Comey’s Federal Bureau of Investigation wanted to destroy him and undermine the president.
“The Logan Act is not only a temptation for overzealous law enforcement, it’s a temptation for the president himself and his national-security aides. After all, the act deals with foreign policy, which is tightly controlled by the White House. It is also likely to prompt illicit cooperation between the FBI and the Central Intelligence Agency, targeting U.S. citizens. Don’t think that couldn’t happen. It just did.”
And yet, imagine the howl if President Donald Trump’s FBI, Department of Justice or Central Intelligence Agency decided to investigate Democrat Joe Biden for having conversations with foreign leaders after media outlets declared him the winner of the 2020 presidential election on Saturday.
Biden isn’t just doing that; one of his likely future employees is bragging about it.
In an appearance on MSNBC on Monday, former Obama administration deputy national security adviser Ben Rhodes — almost certain to have a position in a potential Biden administration — bragged to Nicolle Wallace that the transition was so thoroughly underway that Biden was talking to other world leaders.
“Transitions are set up to be the most efficient way possible to hand over this massive apparatus of the U.S. government from one president to another,” Rhodes said.
“The center of political gravity in this country and the world is shifting to Joe Biden. Foreign leaders are already having phone calls with Joe Biden, talking about the agenda they’re going to pursue Jan. 20,” he added. “If that reality hasn’t sunk in yet for some people in the White House, it will sink in when they have to leave on Jan. 20.”
— Tom Elliott (@tomselliott) November 9, 2020
It’s not just Rhodes, either.
Biden himself said his conversations with world leaders were “very fulsome” and “energetic.”
Biden: “I’ve had the opportunity to speak with six world leaders. The response has been fulsome, energetic.” pic.twitter.com/qOO3R57uMz
— Tom Elliott (@tomselliott) November 10, 2020
My assumption is that these conversations didn’t just involve pro forma congratulatory piffle, either.
It just so happened that, the next day, former FBI Deputy Director Andrew McCabe was appearing before Congress to talk about his role in the investigation surrounding the 2016 election. Republican Sen. Ted Cruz of Texas asked McCabe, who was part of the Flynn investigation, about his thoughts regarding Rhodes’ remarks about Biden.
“He is talking with foreign leaders and it doesn’t violate the Logan Act, because the Logan Act is unconstitutional, which is why it’s never been used to prosecute anyone. You authorized using it to go after General Flynn as part of a political persecution,” Cruz said.
“I can give you the answer, hell no, Joe Biden is not violating the Logan Act. The reason you won’t say it is because that was your flimsy political basis to go after a decorated war hero because you disagreed politically with President Trump.”
“Sir, none of that is correct,” McCabe said.
Generally, when Andrew McCabe is saying that “none of that is correct,” it’s a good sign that most of it is correct. In this case, all of it is.
The Logan Act is a wretched, superannuated piece of legislation now used as a meaningless political club, wholly useless at preventing any real crime from occurring but useful if you don’t like your opponent.
It was a flimsy pretext for the investigation into Flynn inasmuch as it doesn’t result in convictions and hasn’t resulted in any charges since 1852.
However, if the Obama administration believed it was a reason to listen in on Flynn’s phone calls, it should also be a reason for the Trump administration to listen in on Biden’s phone calls — and perhaps even send some FBI agents to ask him questions about it.
After all, remember the golden rule of politics: Do unto others as they do unto you.
The Logan Act was used to drum a patriotic American out of public life and, if the Andrew McCabes of the world had their way, into a federal prison. Now, Ben Rhodes brags about Joe Biden doing the same thing Flynn did.
Pundit Saagar Enjeti may have put it best:
I was told this is a Logan Act violation which merits 3 years of baseless conspiracy theorizing https://t.co/DyOByQWkAN
— Saagar Enjeti (@esaagar) November 10, 2020
The Logan Act should have been repealed long ago. It wasn’t, though — and fair is fair.
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