Logan Act Is Too Vague to Prosecute Flynn. Or Anyone.

The resignation of National Security Adviser Michael Flynn grew out of Department of Justice concerns that he had violated the Logan Act, a law from 1799(!) that bars private citizens from engaging in international diplomacy. The law as written applied to Flynn even though he was working for the president-elect when he engaged in a phone call with Russian ambassador to the U.S. But there’s a more serious problem, which should be kept in mind in case there’s an investigation of whether Donald Trump violated the law: It is probably unconstitutional. Enacted by the Congress that brought you the Alien and Sedition acts, the law is too vague for enforcement. And it violates free-speech standards that are the law today but went unrecognized by the John Adams administration.

Ordinarily I would start a column like this by reviewing the binding judicial interpretations of the law over the centuries. The problem is, there aren’t any. Exactly one person has been indicted for violating the law, a Kentucky farmer named Francis Flournoy who in 1803 wrote a newspaper article advocating the creation of a separate country that would ally itself with France. Flournoy left Kentucky before the trial could start. It appears, based on research by my late colleague Detlev Vagts, that no one has been prosecuted under the law since.