As an attorney I often represented clients I didn’t like, so I’ll offer a legal defense for the 47 Senate Republicans who tried to sabotage the negotiations with Iran. (More)
Have no doubt: the ‘open letter’ to Iran’s leaders, authored by Sen. Tom Cotton (OK) and signed by 46 other Senate Republicans, was reprehensible. It was a public and partisan display of contempt for a twice-elected president. Combine it with Senate Majority Leader Mitch McConnell advising states to ignore new Environmental Protection Agency emission rules and the Washington Monthly’s Ed Kilgore’s charge of sedition is only a slight exaggeration. At the very least, the Washington Post’s Paul Waldman is correct in observing that Republicans have apparently decided to act as if Barack Obama is not the President of the United States.
But all of that does not add up to a crime. That ‘open letter’ was probably not a Logan Act violation and – despite the howls of some progressives – it certainly was not treason.
The petition in the previous link calls this “high treason,” which is odd because no such crime exists in U.S. law. In common law, treason came in two varieties: high treason (against the government) and petit treason (murder of a superior: a wife killing her husband, a clergyman killing his prelate, or a servant killing his/her employer or employer’s spouse). Both were punishable by death, and high treason was punishable by the most hideous death the English could devise: drawing and quartering.
But our constitutional framers rejected the common law of treason, and instead chose to define that crime very narrowly:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.
An ‘open letter’ is clearly not “levying war.” Indeed it would not even qualify as “adhering to their enemies, giving them aid and comfort, not least because Iran is not an “enemy” as defined in United States v. Greathouse:
The term “enemies,” as used in the constitutional clause defining treason […] applies only to subjects of a foreign power in a state of open hostility with us[.]
We are not “in a state of open hostility” with Iran. Indeed the P5+1 negotiations are an attempt to prevent exactly that “state of open hostility.” As a matter of constitutional law, the ‘open letter’ was not treason.
Dante’s Ninth Circle of Hell – the most grievous punishment in his Inferno – was reserved not for rape or murder but for acts of betrayal, including treason. Now as then, many consider treason the most reprehensible crime of all, and the U.S. Supreme Court agreed in Hanauer v. Doane (1870), writing “no crime is greater than treason.”
And that’s exactly why we shouldn’t yell “Treason!” … unless there was actual treason, as defined by Article III, Section 3. This wasn’t.
The Logan Act
The petition also alleges that this ‘open letter’ violated the Logan Act. That’s a very old law, first enacted in the Adams administration, most recently updated in 1994, and it provides:
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.
But here’s the thing. No one has ever been indicted for violating the Logan Act. And these 47 Senate Republicans will not be the first defendants. Indeed their ‘open letter’ is probably protected by the Article I, Section 6 Speech and Debate Clause:
The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.
The protection of this clause is not limited to words spoken in debate. “Committee reports, resolutions, and the act of voting are equally covered, as are ‘things generally done in a session of the House by one of its members in relation to the business before it.'” Thus, so long as legislators are “acting in the sphere of legitimate legislative activity,” they are “protected not only from the consequence of litigation’s results but also from the burden of defending themselves.” But the scope of the meaning of “legislative activity” has its limits. “The heart of the clause is speech or debate in either House, and insofar as the clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.”
Yes, the federal courts have long recognized the president’s exclusive authority to negotiate treaties and other international agreements. Had Sen. Cotton and his 46 colleagues offered Iran a deal on their own terms, that might indeed warrant the first ever Logan Act prosecution. But they didn’t. They merely ‘educated’ Iranian leaders on the finer points of U.S. constitutional law … and got it wrong.
In fact, their temper tantrum – and really that’s all it was – might well backfire, as international relations professor Daniel Drezner explained at the Washington Post:
Indeed, if anything, this letter could help bolster the Obama administration’s bargaining position:
Obama’s negotiators should intimate that whomever the president will be in 2017, they’re going to be far less likely to compromise on [Iran].
The great thing about this is that the 2016 candidates will be making Obama’s case for him. The one thing the 2016 campaign will produce in ample quantities is hawkish rhetoric. All Obama’s team has to do is point to these statements to make the case to the other side of the negotiating table about the need to deal now.
So, to sum up: Republican senators are trying to scuttle the negotiations with Iran. But not only do I think it won’t work, it might paradoxically help Obama.
Professor Drezner also argues that, if the P5+1 negotiations produce a deal and Iran remains in compliance, even an executive agreement will bind future presidents … because they’ll also want to negotiate international agreements and reneging on previous deals would undermine their own credibility.
So yes, this was despicable. But it wasn’t illegal, and a year from now it probably won’t have made even the slightest difference in the course of world events. That’s how impotent the Republican Party is right now … and that’s exactly why they’re having these tantrums.