In May, The Wall Street Journal published an opinion piece by Charles Lipson titled “Repeal the Logan Act.”
The Logan Act, for the unfamiliar, is a law from 1799 that has never yielded a conviction. In fact, it’s led to only two charges, both during the 19th century.
The law makes it illegal for any private individual to engage in “correspondence or intercourse with any foreign government … in relation to any disputes or controversies with the United States, or to defeat the measures of the United States.”
Despite the lack of convictions, the Logan Act made it possible for the U.S. government to target Michael Flynn, the former Trump administration national security adviser who was investigated for having a phone call with Russian ambassador Sergey Kislyak before President Donald Trump took office.
Flynn would plead guilty to lying to an FBI agent, although he would later move to drop the plea and the Department of Justice wouldn’t pursue the case.
“Since the law is hardly ever enforced, why not leave it alone?” wrote Lipson, a University of Chicago professor emeritus. “Because while the law is still on the books, it can always be trotted out and used selectively, even maliciously. That’s exactly what happened to Mr. Flynn when James Comey’s Federal Bureau of Investigation wanted to destroy him and undermine the president.
“The Logan Act is not only a temptation for overzealous law enforcement, it’s a temptation for the president himself and his national-security aides. After all, the act deals with foreign policy, which is tightly controlled by the White House. It is also likely to prompt illicit cooperation between the FBI and the Central Intelligence Agency, targeting U.S. citizens. Don’t think that couldn’t happen. It just did.”
And yet, imagine the howl if President Donald Trump’s FBI, Department of Justice or Central Intelligence Agency decided to investigate Democrat Joe Biden for having conversations with foreign leaders after media outlets declared him the winner of the 2020 presidential election on Saturday.
Biden isn’t just doing that; one of his likely future employees is bragging about it.
In an appearance on MSNBC on Monday, former Obama administration deputy national security adviser Ben Rhodes — almost certain to have a position in a potential Biden administration — bragged to Nicolle Wallace that the transition was so thoroughly underway that Biden was talking to other world leaders.
“Transitions are set up to be the most efficient way possible to hand over this massive apparatus of the U.S. government from one president to another,” Rhodes said.
“The center of political gravity in this country and the world is shifting to Joe Biden. Foreign leaders are already having phone calls with Joe Biden, talking about the agenda they’re going to pursue Jan. 20,” he added. “If that reality hasn’t sunk in yet for some people in the White House, it will sink in when they have to leave on Jan. 20.”
— Tom Elliott (@tomselliott) November 9, 2020
It’s not just Rhodes, either.
Biden himself said his conversations with world leaders were “very fulsome” and “energetic.”