Tilting at Windmills ― Again
Preface: I’m writing this in a fog of narcotic pain relief. Nothing more serious than a damaged big toe, so no worries, but understand that if I typo or become disjointed, you can thank Mother Morphine.
It’s all over social media so folks probably already know about this alleged Logan Act violation. The contents of this article won’t really cover anything new in that respect, but I put it out there to at least illustrate the vileness of the Republican Party ― beginning not in 2016 ― but all the way back to 1960 and Nixon's first run for the White House. Barbarians were at our gate.
The Logan Act dates all the way back to the final years of the 18th century. It criminalized the negotiation of disputes between the United States and foreign governments by American citizens not specifically authorized to do so. The intent behind it was to prevent anything from undermining the government's position.
The Act was passed following the 1798 attempt by a Philadelphia Quaker, a fellow named George Logan, without authorization, to negotiate personally and directly with France. It was signed into law by President John Adams on January 30, 1799, and appears to have been amended only once, fairly recently.
The original text of the bill called for a fine of $5,000, which would have been a substantial amount in the days when a loaf of bread or a mug of ale cost only pennies. The amendment came in 1994, the second year of Bill Clinton’s first term, changing the wording slightly from “fined $5,000 to "fined under this title" (with no recommended dollar amount), and making the violation of the Act a felony, punishable with imprisonment for up to three years.
Curious that it was amended so soon after a Democrat took the office, following 12 years of Republican dominance, Isn’t it?
Or is it? Consider this. From 1969 until 1992, Republican rule was interrupted only by the four-year term of the arguably weak one term Jimmy Carter administration.
Now consider this. In 1968, the U.S. had been mired in the very unpopular (very, very unpopular with me) Vietnam war for 13 years. Lyndon Johnson was trying desperately to extract this nation for a conflict that was bleeding us dry. Over 50,000 Americans had already been killed and more were dying every day. LBJ had initiated the Paris Peace Talks and had worked out an accord with North Vietnam to end the conflict ― until it suddenly and inexplicably collapsed.
On the evening of the last day of the month of March 1968, a very weary appearing Lyndon Baines Johnson went on live television to read a prepared 40-minute address to the nation:
The President described in detail the history of the war and of his most recent efforts ― then with the moist eyes of a man who felt he had failed his nation, he looked into the camera and said:
“With America's sons in the fields far away, with America's future under challenge right here at home, with our hopes and the world's hopes for peace in the balance every day, I do not believe that I should devote an hour or a day of my time to any personal partisan causes or to any duties other than the awesome duties of this office ― the Presidency of your country.
“Accordingly, I shall not seek, and I will not accept, the nomination of my party for another term as your President.
“But let men everywhere know, however, that a strong, a confident, and a vigilant America stands ready tonight to seek an honorable peace ― and stands ready tonight to defend an honored cause ― whatever the price, whatever the burden, whatever the sacrifice that duty may require.
“Thank you for listening.
“Good night and God bless all of you.”
Still a teenager, my heart was in my throat as I watched the man who had once been a bigoted, racist Dixiecrat` from Texas, but who had his heart opened by the goodness of his murdered predecessor to the point of carrying on John Kennedy’s dream by forging the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 ― as I watched the now beaten man fall on his sword ― the emotions I felt at that time cannot be described in words.
Anyway, back to the subject of this missive.
Johnson understood that he had no chance of winning and took the only option with any possibly of a Democratic win ― tossing it to an open convention and hoping some candidate could rise to the challenge. Democrats were in disarray, and it didn’t work out so well. The Convention in Chicago was a disaster.
Dwight Eisenhower’s Vice President, who could not even get earn his boss’s endorsement eight years earlier when he ran against John Kennedy, won the election and became President in 1969.
Ike knew Nixon was a crook, and by withholding his endorsement, he was telling us as much. Republicans can’t seem to recognize a crook until it’s too late, yet in 1974 we proved it. In shame, he resigned, leaving us with a new president, who for the first time in history was a man who had not been elected to the job. He pardoned Nixon of any crimes, known or unknown, which in my mind, was a crime itself. They’re both dead now, so it does not matter.
That pardon likely led to many subsequent events that we don’t know about, nor is it likely that we ever learn about them ― but as far as this missive goes, that pardon shielded Nixon from what could have been the first use of the Logan Act since the 1852 indictment of Jonas Phillips Levy ― a prosecution that fell apart when Mexican President Mariano Arista refused to provide the evidence prosecutors needed.
We had the evidence on Nixon but didn’t know it until it was too late. Had we known in 1974 what we know now, Nixon might have felt the bite of its blade ― but now, and for over 100 years, the Logan Act has rested comfortably ― unused.
Let’s backtrack a little and look at why:
In 1968 the Paris Peace talks failed, but why did they fail? As it turns, a REPUBLICAN aide to Nixon was engaging in illegal negotiations with both the South and the North Vietnamese delegations.
As reported by BBC’s David Taylor, she:
“convinced the South Vietnamese to walk away from the dealings. In 1967, with American troop strength in Vietnam reaching 500,000, protests against U.S. participation in the Vietnam War had grown stronger as growing numbers of Americans questioned whether the U.S. war effort could succeed or was morally justifiable. They took their protests to the streets in peace marches, demonstrations, and acts of civil disobedience. Despite the country’s polarization, the balance of American public opinion was beginning to sway toward “de-escalation” of the war.”
Nixon needed the war to continue. He was running on a platform opposing the war and believed if he could somehow sabotage the peace talks, it would derail LBJ’s campaign. (If I’ve said it once I’ve said it a thousand times. You cannot trust a Republican.)
Taylor continued, saying:
“In late October 1968 there were major concessions from Hanoi which promised to allow meaningful talks to get underway in Paris – concessions that would justify Johnson calling for a complete bombing halt of North Vietnam. This was exactly what Nixon feared.
LBJ recorded all of his phone conversations, and tapes from 1968, not released until 2014, detailed that the FBI had “bugged” the telephones of the South Vietnamese ambassador and of Anna Chennault, the aide who was doing Nixon’s bidding. Based on the tapes, we learn that in the time leading up to the Paris Peace talks, according to Taylor:
“Chennault was dispatched to the South Vietnamese embassy with a clear message: the South Vietnamese government should withdraw from the talks, refuse to deal with Johnson, and if Nixon was elected, they would get a much better deal.”
In the tapes, you can hear Johnson being told about Nixon’s interference by Defense Secretary Clark Clifford. The FBI had bugged the South Vietnamese ambassador’s phone. They had captured Chennault lobbying the ambassador on tape. Johnson was furious and ordered Nixon’s campaign to be placed under FBI surveillance. Next, LBJ sent a note to Nixon telling him that he knew about the move. Nixon played like he had no idea why the South backed out and offered to travel to Saigon to get them back to the negotiating table. Johnson knew Nixon could not be trusted but recognized that he was trapped. He could not admit to bugging the South Vietnamese.
We only know of this because of those tapes that were withheld until after Nixon’s death, meaning one crooked Republican got aways with a whole bunch of criminal activity and walking away to live in luxury with the blood of every death that war produced for the seven years and four months between January 1968 and the end of April 1975.
This is the modern Republican legacy, and it continues right up until today.
A little more history of crooked Republicans:
Not a Logan Act violation, but at the time most definitely the worst national scandal since Watergate, was Ronald Reagan's Iran-Contra affair ― which again was clouded by the cigar smoke of Washington back rooms. As long as it’s been since, we likely will never know the full extent of Reagan’s involvement, because just like with Nixon, even with eight hours of videotaped recordings, all we can say for certain is that Reagan had a perhaps intentionally fickle memory.
Reagan repeatedly said he could not remember details of the secret sale of weapons to Iran or the huge amounts of Iranian cash diverted to Nicaraguan Contras. What we do know is that the transcript Reagan released on the Administration’s rationale, the attempt to free American hostages in Lebanon had been, like the Nixon tapes, edited. The Tower Commission could not pry any truth out of an addled ex-President.
Reagan’s sworn testimony was videotaped before the federal judge presiding over the case of John Poindexter, the one-time national security adviser who insisted on getting testimony from his former boss. It was a mess of contradiction and confusion.
Reagan first told the Tower commission that he approved a secret shipment of arms by Israel to Iran but could not remember the exact date. He said that approval required his signature on what he called “an authorization," but then later said he did not sign any such approval.
At another time, in response to a query, he wrote, "Try as I might, I cannot recall anything whatsoever about whether I approved an Israeli sale in advance or whether I approved replenishment of Israeli stocks around August of 1985. My answer, therefore, and the simple truth is, I don't remember. Period."
Poindexter told Congress that Reagan had approved the arms shipment in November 1985, when it occurred, and signed an order authorizing it retroactively in December 1985, but that he destroyed the authorization when the scandal became public because “it was a political bombshell that seemed to describe an outright arms-for-hostages trade.” Reagan continued to deny anything.
Reagan, like Nixon, laid the blame for any crimes committed on subordinates, but during his 1989 trial, Oliver North testified that Reagan had considerably more knowledge than had been disclosed. North’s documents included evidence of military and economic aid to Honduras in exchange for allowing Contra bases and arms shipments on Honduran territory.
People went to prison. Reagan went to his ranch.
George W. Bush and his crimes against humanity that led up to the Iraq war, and his persecution of that war, are modern history, so I see no need to recap those. Let’s get back to the Logan Act, and why I feel that all the pundits sticking that puck around are wasting their breath.
We have a lot of evidence for a lot of crimes for which Herr Drumpf has not yet been held to account, nor have the crimes for which he has been held to account, we still do not have finality. A phone call to Bibi, under the alleged circumstances, may well be a crime, but what are we going to do about it? Where in this queue of unrequited justice does it fit? There are several reasons why it won’t and why it shouldn’t ― all of which boil down to our constitution.
John Adams may have thought he had good reason to push the Act through Congress, but Adams was never known for faithfully following the constitution, and his Logan Act skirts the edges of constitutionality. I’ll bullet my reasons below:
It’s most likely a violation of the freedom of expression guarantee of the First Amendment. It directly regulates speech based on content. SCOTUS case law requires the statute to meet “strict scrutiny” requirements, meaning a regulation on speech must be necessary to achieve a compelling state interest. Perhaps we could argue that the “one voice” principle represents that interest, but constitutional scholars don’t think so.
It violates the vagueness doctrine as applied in the Fifth Amendment’s Due Process Clause, as defined by Winters v New York.
A statute can be determined “impermissibly vague” if it either fails to provide “people of ordinary intelligence” a reasonable opportunity to understand what is prohibited, or if the law authorizes or encourages arbitrary and discriminatory enforcement.
The U.S. District Court for the Southern District of New York is the only court in recent memory to have considered the Logan Act’s constitutionality. That court believed it to be unconstitutionally vague. In 1964, when Waldron v. British Petroleum Co. made it before the Rehnquist court, BP argued that Waldron’s “business” was illegal under the Logan Act.
The court decided that there was “a doubtful question with regard to the constitutionality” of the Logan Act. Specifically, the court reasoned, the statute’s uses of the terms “defeat” and “measures” were “vague and indefinite” because those terms failed to possess clear definitions. The court urged to eliminate the vagueness or repeal the Act.
There is also The Rule of Lenity [https://www.law.cornell.edu/wex/rule_of_lenity], which requires a court to “resolve statutory ambiguities in favor of criminal defendants,” or inversely, provide enough guidance to conclude “the Act is sufficiently specific.” The Logan Act might meet this rule, as it defines the intent of the violator as “to defeat the measures of the United States” or “influence the measures or conduct” of a foreign government. To that end, the Act’s application might be narrow and understandable enough, in certain specific cases. In this instance, maybe yes, maybe no. I’ll leave that for others to decide.Constitutional scholar Detlev F. Vagts. writing in The American Journal of International Law writing in 1966 [https://www.jstor.org/stable/2197573], predicted that a situation like what we are currently experiencing would eventually happen. At the time he proposed converting the Act into a statute, modeled after the Foreign Agents Registration Act, which has withstood constitutional tests.
Another option could be to give the State Department the power to issue regulations forbidding communication with specific countries on specific topics, which would avoid the possibility of vagueness issues. But how would we punish it?
A third option could be to remove the criminal penalties from the Logan Act, either by making it a “declaration of principle” or by using administrative penalties, like passport revocations. In a 1980 decision, the D.C. Court of Appeals, in Agee v. Muskie. Indicated that passport revocation might work, but under current circumstances, would be all but useless.
So, I gotta ask why so many are looking to arcane federal laws to “punish” a criminal who is more likely to meet his comeuppance under less mundane circumstances? There are laws on the books now offering a host of restrictions that are intended to govern how we citizens are allowed to interact with foreign entities.
I vehemently argued against Bush’s very badly named Patriot Act, but since we got it stuffed down our throats anyway, why not use it?
Its Material Support Statute might apply, but laws against espionage, disclosure of classified information, or its prohibitions of forming organizations subject to foreign control give us plenty of options. I think we know that classified information has already escaped under his watch yet we have so far been unable to hold him accountable, so I would suspect that a phone call to Bibi is pretty far back in queue.
The Logan Act will never be more than that brass ring ― forever beyond our reach. Attempting to use it as a means of taking hims down would be tied up in court for years, and don’t we want to see him pay for something before he kicks the bucket?