Did John Kerry violate the Logan Act?

As President Trump seriously contemplated ending U.S. participation in the Iran nuclear deal, John Kerry, the deal’s main architect, reportedly met multiple times with Iranian Foreign Minister Javad Zarif and with German President Frank-Walter Steinmeier and French President Emmanuel Macron. Did Kerry thereby violate the Logan Act?

That Act provides:

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.

(Emphasis added)

Before considering whether Kerry violated the Logan Act, I should state that I consider the law a dead letter. It has never been successfully used and the last indictment under the Act was in 1803. This, despite probable violations throughout our history.

The doctrine of desuetude holds that statutes, especially criminal ones, may lapse if never enforced. I believe this doctrine applies to the Logan Act.

Still, it’s worth considering whether Kerry’s recent actions violate the terms of the Logan Act. I believe they probably did.

Kerry does not deny talking with Iran, France, and Germany about the Iran deal. He and his supporters argue, however, that doing so couldn’t have violated the Logan Act because at the time of his talks, and indeed until yesterday, U.S. policy was to adhere to the deal. Therefore, anything he did to make sure the tenets of the Iran deal “remain effective” (to use the words Kerry’s spokesperson employed to defend his conduct) was consistent with U.S. policy.

This argument might well be a good defense to the provision of the Logan Act that prohibits “intercourse” with foreign governments “to defeat the measures of the United States.” But that’s only part of what is banned.

The Act also bars “intercourse” undertaken “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.” It’s likely that Kerry’s discussions fell afoul of this provision.

We don’t know for certain what Kerry was trying to accomplish through his talks with foreign governments. However, his own spokesperson says he wanted to make sure the tenants of the Iran deal “remain effective.” And we know he undertook this mission in response to the possibility, indeed the likelihood, that the U.S. would pull out of the deal.

It’s likely, then, that Kerry was lobbying Iran to continue to adhere to its commitments under the deal in the event the U.S. pulled out. He may have been effective in this regard, at least temporarily. Iran’s president says his country will continue to abide by the deal if negotiations with other signatories (including France and Germany) persuade him that Iran can still obtain most of the economic benefits of its “bargain.”

Kerry’s talks with France and Germany probably were part and parcel of his talks with Iran. It’s likely that these discussions centered around how these countries could persuade Iran to stay in the deal if, as was extremely likely, the U.S. pulled out. Kerry probably also talked about efforts the leaders of France and Germany could take to persuade President Trump to stay in the deal.

Would such talks violate the terms of the Logan Act. I think so.

Certainly they would have been undertaken with the “intent to influence the measures or conduct of [a] foreign government.” The only other question is whether this was “in relation to any disputes or controversies with the United States.”

It is difficult to argue that until yesterday there was no dispute or controversy between Iran and the U.S. relating to the nuclear deal. The U.S. has asserted that Iran is not fully complying with the terms of the deal. Iran denies this. The U.S. has asserted that the deal is inadequate and should be renegotiated. Iran says a deal is a deal and refuses to renegotiate.

Because, as noted, the Logan Act hasn’t been used since 1803, the meaning of its key terms have not been fleshed out by the judiciary. But their meaning seems sufficiently plain to conclude that Kerry likely violated the Act.

Again, though, I view the Logan Act as a dead letter and do not believe John Kerry, or anyone else, should be prosecuted for violating it.