consultants are sandburs

Sunday, February 19, 2017

Logan Act.

The Logan Act is the federal criminal statute some have alleged Flynn's contact with the Russian Ambassador violated. Here is the text of the statute online. Passed in 1948; apparently amended, 1994, it reads:

18 U.S. Code § 953 - Private correspondence with foreign governments

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.

This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.

(June 25, 1948, ch. 645, 62 Stat. 744; Pub. L. 103–322, title XXXIII, § 330016(1)(K), Sept. 13, 1994, 108 Stat. 2147.)

Here is the one online case found construing the Logan Act, well after 1948 passage; concerning an issue that arose before the CIA coup against the Mossadegh government of Iran; but likely related at least in part to the motivation at play in our government having wanted and engineered a coup; oil being at issue. A U.S. citizen, cognizant of nationalization by Iran of British Petroleum oil rights, had attained a written State Department policy statement:

"In the Department's opinion the British-Iranian oil controversy is basically a matter for negotiation between the two Governments directly concerned. Because of our vital interest in this matter the United States Government continues to use its influence toward finding a solution of this difficult problem. In line therewith, we welcome the initiative of the International Bank for Reconstruction and Development which is currently trying to work out a plan for settlement of the controversy and are extending every appropriate assistance in such efforts as the Bank is making in this regard.

"The Department is of the opinion that the injection of any non-official individual, group or organization into this dispute might prejudice the ability of the parties concerned in reaching a satisfactory solution. Accordingly, the Department believes that non-official entities should refrain from getting involved in the dispute."

231 F. Supp. 72, at 76-77 (1964).

In stating facts of the case, the court, Id. at 77, stated:

From this point forward and continuing until the time that the contract was actually negotiated, the Waldron group and Raphael engaged in a correspondence that contained patent misrepresentations and none-too-subtle hints of bribery.

There were flights to Iran by parties in furtherance of attaining an oil deal, which resulted; but the deal fell through with one party to it suing another. Readers are encouraged to study the case in more detail, if interested. The defendants moved for dismissal; and the Court in its legal analysis re the Logan Act opined; Id. at 88-89 [formatting and footnotes in original omitted]:

Does Plaintiff's Alleged Illegal and Similar Misconduct Preclude His Standing To Sue?

Defendants attack plaintiff's standing to sue, arguing that the uncontroverted evidence establishes that plaintiff procured his NIOC contract by means of conduct grossly violative of and repugnant to public policy.

While there are variations in defendants' verbalization of this argument, the theme is the same: the NIOC contract, the predicate of plaintiff's Section 4 "property," is the fruit of plaintiff's illegal, immoral and corrupt acts and, therefore, the Court should deny judicial recognition to plaintiff's status derived from that tainted contract.

One line of attack is that plaintiff procured the NIOC contract through the commission of federal criminal offenses. He is specifically charged by defendants with having violated five criminal statutes: the Logan Act (18 U.S.C. § 953), the mail fraud statute (18 U.S.C. § 1341), the false statement to government agency statute (18 U.S.C. § 1001), the conspiracy statute (18 U.S.C. § 371) and the false passport application statute (18 U.S.C. § 1542).

However, the record discloses the existence of genuine issues of material fact requiring resolution before it could be fairly determined that plaintiff had committed crimes in the process of securing the NIOC contract.

The Logan Act makes it a crime for any citizen of the United States directly or indirectly to commence or carry on correspondence or intercourse with any foreign government or any officer or agent thereof "with intent * * * to defeat the measures of the United States."

Such evidence as there may be in this record of a violation of the Logan Act places in issue plaintiff's specific intent. That subjective circumstance would alone be sufficient to defeat this summary judgment motion, were the motion grounded only on a transgression of that statute.

Moreover, in considering proof of the "measures" of the United States required to spell out a violation of the Logan Act, the Court finds that there is substantiality to plaintiff's factual argument that the expressed United States policy with respect to the importation of Iranian oil was neither definitive nor clear at the time of plaintiff's alleged violation.

The State Department's letter of February 4, 1952 (SONJ Ex. 3 for id.) to Senator Johnson (who forwarded it to plaintiff) would, at first reading, indicate that the State Department felt that Waldron should not in any way become involved in Iranian oil. A closer reading discloses that the letter expresses the State Department's "opinion," "attitude" and "belief," without incisively declaring or promulgating a defined policy.

While the State Department's choice of words may, according to diplomatic convention, be regarded as an expression of policy, it is doubtful whether this opinion-letter and its pronouncement rise to the status of "measures" for the penal purpose of the Logan Act.

That the State Department's attitude was not clearly and unequivocally delineated is suggested by its own subsequent language in a press release, dated December 6, 1952, expressing a less stringent view—a view that the movement of "small quantities of oil or oil products" seemed to the State Department as of relatively "minor importance" and "that the decision whether or not such purchases of oil from Iran should be made must be left to such individuals or firms as may be considering them, and to be determined upon their own judgment." State Dept. Bull., Dec. 15, 1952, p. 946.

The record thus poses an issue of material fact as to the existence and identity of "the measures of the United States" during the material period of time in 1952.

Another infirmity in defendants' claim that plaintiff violated the Logan Act is the existence of a doubtful question with regard to the constitutionality of that statute under the Sixth Amendment. That doubt is engendered by the statute's use of the vague and indefinite terms, "defeat" and "measures." See United States v. Shackney, 333 F.2d 475, (2d Cir. 1964); Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960); E. Freund, The Use of Indefinite Terms in Statutes, 30 Yale L.J. 437 (1921). Neither of these words is an abstraction of common certainty or possesses a definite statutory or judicial definition.

Since, however, there are other grounds for disposing of this motion, it is not necessary to decide the constitutional question.[30] Furthermore, any "ambiguity should be resolved in favor of lenity." Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955), quoted in United States v. Shackney, supra, 333 F.2d at 475.

Defendants' contention that plaintiff was part of a conspiracy (18 U.S.C. § 371) to violate the Logan Act is subject to the same infirmities as the defendants' claim based on a substantive violation of the Logan Act.

Again, readers are urged to read the online item, itself. The suggestion here is that nothing in that opinion strengthens any assertion against, Flynn. The court analyzed intent, and in dicta noted concern over statutory vagueness. Not strong points of authority for purging Flynn. If any reader knows of other judicial opinion construing the Logan Act, such reader is urged to give a citation/link via a comment.

In the noted case the court early in its Logan Act analysis siezed on language, "with intent * * * to defeat the measures of the United States."

If as Flynn contends and his vaguely stated memory serves him right, his discussion was basically that all relations between two nations would be under review once the soon-to-be presidential transition was to happen; it appears an intent to give notice, without any promise, was at issue and as Flynn has stated, no hard and fast line was crossed. Transcripts of phone conversations remain non-public; so for now taking Flynn at his word seems proper.

Two other federal cases online mentioning the Logan Act were found. This link and here. Both were dismissive of private plaintiff assertion of rights to sue premised upon the Logan Act; the latter case citing the former for that principle:

Insofar as plaintiff brings a claim under the Logan Act, the Court concludes that he lacks standing to do so. Only the United States Department of State is aggrieved by a violation of the Logan Act, see ITT World Comm`cns, Inc. v. Fed. Comm'cns Comm`n, 699 F.2d 1219, 1231 (D.C. Cir. 1983), rev'd on other grounds, 466 U.S. 463 (1984), and plaintiff cannot demonstrate an injury suffered due to defendants' Logan Act violation that affects him "in a personal and individual way." Lujan v. Defenders of Wildlife, 504 U.S. at 560 n.l.

Nor does plaintiff have standing to bring a claim that defendants' actions deprive him of a republican form of government. The Supreme Court has "consistently held that a plaintiff raising only a generally available grievance about government — claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy."

The issue was standing to sue premised on the Logan Act in each of those cases; not the reach or meaning of any wording or part of the Logan Act itself.

This clearly is obscure federal law; trotted out for whatever motives apply, in hostility toward Gen. Flynn. A Time magazine online passing reference to 1947 "gabbiness" of a former vice president during a trip abroad, here, as motivation for passage of the Logan Act, suggests a fit to Romney as much or more than to Flynn; but it appears only the federal government has standing to sue. The Trump-Exxon State Department and the Trump-Sessions Justice Department are unlikely to sue. It is a dead issue. The intelligence community has Flynn's scalp on its tentpole, for whatever consequences may further arise.

Are you comfortable knowing the Logan Act exists, if you conduct foreign business, or give mid-six-figure paid speeches arguably ancillary to foreign mineral deals, or would you feel better if the statute had never been passed? Are we over-lawed, and over-lawyered, as a nation, or not?

UPDATE: A bigger further, related question, are the size and tentacles of the intelligence community, and its ability to hide its tracks in secrecy, a creature of a swamp needing some major degree of draining? And, should we anticipate that draining, hope for it, or fear it under a belief that the good and fine dedicated civil servants and outside consultants with security clearanaces have our citizenry's best interest in mind at all times, to protect us from threat, of whatever nature, foreign or domestic? Related: What is the full cost of "the intelligence community" in annual budget terms; and are taxpayers getting any good measure whatsoever of bang for their bucks? Or is a big morass of money sink holes replete with cronyism at issue; perhaps analogous to a swamp; perhaps worse?

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