The View From 1776

The Wall Street Journal’s April 6, 2007, edition carries an op-ed opinion article that suggests strongly that Speaker Pelosi’s recent foray into the diplomatic province of the Executive, intended as a political ploy to embarrass the President, may have far more serious consequences.

Subscribers to the Journal’s online edition can read the article here.

Illegal Diplomacy
By ROBERT F. TURNER
April 6, 2007; Page A10

House Speaker Nancy Pelosi may well have committed a felony in traveling to Damascus this week, against the wishes of the president, to communicate on foreign-policy issues with Syrian President Bashar Assad. The administration isn’t going to want to touch this political hot potato, nor should it become a partisan issue. Maybe special counsel Patrick Fitzgerald, whose aggressive prosecution of Lewis Libby establishes his independence from White House influence, should be called back.

The “Logan Act” makes it a felony and provides for a prison sentence of up to three years for any American, “without authority of the United States,” to communicate with a foreign government in an effort to influence that government’s behavior on any “disputes or controversies with the United States.” Some background on this statute helps to understand why Ms. Pelosi may be in serious trouble.

President John Adams requested the statute after a Pennsylvania pacifist named George Logan traveled to France in 1798 to assure the French government that the American people favored peace in the undeclared “Quasi War” being fought on the high seas between the two countries. In proposing the law, Rep. Roger Griswold of Connecticut explained that the object was, as recorded in the Annals of Congress, “to punish a crime which goes to the destruction of the executive power of the government. He meant that description of crime which arises from an interference of individual citizens in the negotiations of our executive with foreign governments.”

The debate on this bill ran nearly 150 pages in the Annals. On Jan. 16, 1799, Rep. Isaac Parker of Massachusetts explained, “the people of the United States have given to the executive department the power to negotiate with foreign governments, and to carry on all foreign relations, and that it is therefore an usurpation of that power for an individual to undertake to correspond with any foreign power on any dispute between the two governments, or for any state government, or any other department of the general government, to do it.”
Griswold and Parker were Federalists who believed in strong executive power. But consider this statement by Albert Gallatin, the future Secretary of the Treasury under President Thomas Jefferson, who was wary of centralized government: “it would be extremely improper for a member of this House to enter into any correspondence with the French Republic . . . As we are not at war with France, an offence of this kind would not be high treason, yet it would be as criminal an act, as if we were at war . . . .” Indeed, the offense is greater when the usurpation of the president’s constitutional authority is done by a member of the legislature—all the more so by a Speaker of the House—because it violates not just statutory law but constitutes a usurpation of the powers of a separate branch and a breach of the oath of office Ms. Pelosi took to support the Constitution.

The Supreme Court has spoken clearly on this aspect of the separation of powers. In Marbury v. Madison, Chief Justice John Marshall used the president’s authority over the Department of State as an illustration of those “important political powers” that, “being entrusted to the executive, the decision of the executive is conclusive.” And in the landmark 1936 Curtiss-Wright case, the Supreme Court reaffirmed: “Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.”

Ms. Pelosi and her Congressional entourage spoke to President Assad on various issues, among other things saying, “We came in friendship, hope, and determined that the road to Damascus is a road to peace.” She is certainly not the first member of Congress—of either party—to engage in this sort of behavior, but her position as a national leader, the wartime circumstances, the opposition to the trip from the White House, and the character of the regime she has chosen to approach make her behavior particularly inappropriate.

Of course, not all congressional travel to, or communications with representatives of, foreign nations is unlawful. A purely fact-finding trip that involves looking around, visiting American military bases or talking with U.S. diplomats is not a problem. Nor is formal negotiation with foreign representatives if authorized by the president. (FDR appointed Sens. Tom Connally and Arthur Vandenberg to the U.S. delegation that negotiated the U.N. Charter.) Ms. Pelosi’s trip was not authorized, and Syria is one of the world’s leading sponsors of international terrorism. It has almost certainly been involved in numerous attacks that have claimed the lives of American military personnel from Beirut to Baghdad.

The U.S. is in the midst of two wars authorized by Congress. For Ms. Pelosi to flout the Constitution in these circumstances is not only shortsighted; it may well be a felony, as the Logan Act has been part of our criminal law for more than two centuries. Perhaps it is time to enforce the law.

Mr. Turner was acting assistant secretary of state for legislative affairs in 1984-85 and is a former chairman of the ABA standing committee on law and national security.