Say Anything Blog

Nancy Pelosi's recent bumbling foray into foreign policy with Syria shows why diplomacy should be left to that branch of government - the executive branch - that actually has the authority to conduct it. Pelosi conveyed a 'peace message' from Ehud Olmert to Bashar Assad that - woops! - the Israeli government says it never gave to Pelosi. Apparently Nuancy not only missed the shades of gray there, she missed the black and white as well.

Amateurish and embarassing, yes, but is it illegal also? There is a law called the Logan Act that forbids U.S. citizens from conducting diplomacy without approval from the government. The act, as amended in 2004, reads as follows:

18 U.S.C. § 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.

Members of Congress are not immune from the Act, nor do members of Congress have any constitutional authority to conduct foreign policy. The role of the Senates in foreign policy is basically to ratify treaties and confirm ambassadors. The role of the House is to declare war, and control the purse strings. That's it, no more - only the President has the power to actually conduct or authorize foreign policy and diplomacy. Congress has no more authority to conduct diplomacy than it has to tell General Petraeus how to run the war in Iraq (and why do Democrats find it chronically impossible to understand the separation of powers doctrine? Is it laziness, political expediency, or mis/disinformation? Inquiring minds want to know).

Some have come close to violating the Logan Act: in 1971 John Kerry treacherously met with North Vietnamese government officials in Paris while President Nixon was trying to negotiate peace. Kerry much more recently raised toasts with the mullahs in Iran while proclaiming that the U.S. is a 'pariah state'. The irony of declaring the U.S a pariah state from Tehran was obviously lost on the master of nuance. Speaker of the House Jim Wright nearly ran afoul of it for meeting with the Sandinistas, Jesse Jackson came up with a propaganda 'agreement' with Fidel Castro, and Messrs. Jim McDermott and David Bonior infamously provided aid and comfort to Saddam Hussein on the eve of the Iraq invasion.

Given that history, can Nancy Pelosi be prosecuted under the terms of the Logan Act? Well, sure. A federal grand jury can indict a ham sandwich if it so chooses, but such a case is not likely to go anywhere for a myriad of reasons. As a matter of practical policy, no one has ever been prosecuted under the Act since it was passed in 1799. Moreover, the Logan Act may well be unconstitutional because it is vague and overbroad, thus leaving citizens to guess what behavior is proscribed, and criminalizing speech that would otherwise be protected. There is a question however, as to whether First Amendment protections extend to speech by U.S. citizens in foreign countries. But, no matter: it would be politically impossible for such a prosecution to take place. If the DoJ ever tried to prosecute the Speaker of the House for conducting unlawful diplomacy, it would certainly, invariably, lead to more silly show trials on the Hill, more calls for the impeachment of Bush, and spin in the mainstream media that would attempt to convince you that Pelosi, not Bush, is actually President.

Sadly, too many Americans would believe that to make such a prosecution possible.

Crossposted from WILLisms.com