After disgraced National Security Adviser Michael Flynn pleaded guilty to the FBI and agreed to cooperate with Robert Mueller’s investigation, there’s been much speculation that the special counsel is using the “Logan Act” as leverage in his dealing with potential witnesses.

Let’s hope not. No one has ever been found guilty of violating it since Congress passed the law in 1799. But that fact, which is circulating widely in the media, is a distraction. Far more concerning is another fact about the Logan Act: It has been repeatedly used as a partisan cudgel to harass political opponents for more than two American centuries. If Mueller makes this obscure law the centerpiece of his case against the Trump administration, he runs the risk of inviting accusations, however unfounded, that he, too, is a partisan hack.

The idea behind the Logan Act is not without merit. It forbids Americans from unauthorized negotiations with foreign governments, especially those that seek to “defeat the measures of the United States” aimed at those same countries. In short, it protects the ability of the U.S. government to conduct foreign policy without interference from private citizens.

It originated in the late 1790s. After the U.S. signed a treaty with Great Britain, France retaliated by preying on American shipping. The resulting “Quasi-War” put France on a collision course with President John Adams and the Federalist Party. They had little love for the country after witnessing the bloody excesses of the French Revolution.

But the political opposition, led by Thomas Jefferson and the Democratic Republican Party, retained a strong affection for France. In 1798, Dr. George Logan of Philadelphia, a friend of Jefferson, traveled to Paris for talks with French officials aimed at defusing the conflict. This end run around Federalist foreign policy met with immediate condemnation.

Adams asked Congress to put an end to the “temerity and impertinence of individuals affecting to interfere in public affairs between France and the United States.” Rep. Roger Griswold, a Federalist from Connecticut, happily complied, and Congress passed the Logan Act in 1799.

This same Congress also passed the odious Alien and Sedition Acts, which targeted Jefferson and his followers. And almost immediately, one legal scholar has observed, the statute “revealed its potential as a principle of political behavior, as a debating weapon against the opposition and as a threat against those out of power.” But as a law actually used to prosecute rogue diplomats? Not so much.

In fact, the only person formally indicted under the Logan Act was an eccentric Kentucky farmer named Francis Flournoy, who advocated that his state secede and throw their lot with France. This was hardly a diplomatic overture, but after betraying French sympathies, Kentucky’s U.S. Attorney, an Adams appointee and staunch Federalist, slapped him with an indictment under the Logan Act. The case never made it to trial.

From that point forward, plenty of politicians brandished the Logan Act, but they never took anyone to trial, much less indicted them. This was true even in the Civil War, when Northerners sympathetic to the Confederacy reached out to the British government, asking it to intervene on behalf of the secessionist South. Judges tried to coax grand juries to prosecute these individuals under the Logan Act, but failed to secure indictments.

Though politicians occasionally invoked the Logan Act during the Gilded Age, it was in the 20th century that it became a reliable, if infrequently used, political weapon. In the election year of 1920, Republican Warren G. Harding sought to appear more presidential by claiming that he had been in touch with a French diplomat about the fate of the League of Nations. Such presumption earned him a nasty letter from President Woodrow Wilson.

In 1927, Republican Sen. William Borah, who chaired the Committee on Foreign Relations, wrote to the president of Mexico about a statistical matter involving the nationalization of land. Democrats seized on this misstep, alleging that Borah had violated the Logan Act.

Republicans returned the favor in 1933, claiming that Democrat William Bullitt was “flitting around Europe” consulting with European leaders about unpaid war debts before Roosevelt’s formal inauguration. One Republican senator demanded Bullitt’s arrest and prosecution under the Logan Act. Again, nothing happened, and Roosevelt promptly appointed Bullitt ambassador to the Soviet Union.

Occasionally both Republicans and Democrats found common ground under the Logan Act. In 1947, former vice president Henry Wallace, a Democrat, visited Europe and made speeches that denounced the “Truman Doctrine.” Politicians from both sides of the aisle called for his head, arguing that he had violated the Logan Act. But in general, the Logan Act remained a partisan weapon during the Cold War. During the Vietnam War, Jane Fonda, Ramsey Clark, and other visitors to Hanoi prompted calls that they be prosecuted under the Logan Act.

Newt Gingrich revived the tactic in the 1980s, after Democrats in Congress wrote an open letter to the leadership of Nicaragua encouraging them to accept the contras as political participants. This echoed what the Reagan administration had already demanded, but Gingrich still decried it as “a virtual teaching document to bring Third World Soviet colonies into the process of manipulating American politics and politicians.”

Since that time, both Republicans and Democrats periodically rummage through their political arsenals, rediscover the Logan Act, and brandish it each other like some kind of magical fetish.

This happened most recently after Democrats began accusing Trump of Logan Act violations in the summer of 2016. It was immediately after the Republican convention, when Trump publicly urged Russia to find Hillary’s Clinton’s missing e-mails. “That’s not legal,” Tom Vilsack, President Barack Obama’s secretary of agriculture, said the next day. Democratic Senator Claire McCaskill agreed. “I believe it violates the Logan Act,” McCaskill said, “and I think he should be investigated for that.”

Earlier, Democrats assailed a group of Republicans for writing an open letter to Iran over the future of the nuclear agreement brokered by Obama. The Obama administration didn’t press the issue, and in fact, no one ever gets the ball rolling on an indictment tied to the Logan Act, much less a conviction. That’s because the law has never had much to do with crime and punishment. It was born a political weapon and has remained one ever since.

For Mueller’s work to be taken seriously by the American people, it must remain above politics. Leaving the Logan Act to the politicians will help keep it that way.

 

Stephen Mihm, an associate professor of history at the University of Georgia, is a contributor to Bloomberg View. This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.