A former independent counsel labels Logan Act-justifications for probes into members of Donald Trump’s transition team as “bankrupt” and “embarrassingly sophomoric” in an exclusive interview with Breitbart News.
Even before November’s presidential election, Trump’s opponents invoked the obscure 1799 law as a means to discredit him, a campaign growing in volume in recent weeks. A recent op-ed piece in the New York Times, for instance, claims that former Trump administration national security advisor Michael Flynn’s “admissions leave little doubt that he also violated a federal criminal statute known as the Logan Act.”
But former U.S. attorney and independent counsel Joseph diGenova questions both the law’s constitutionality and the notion that any transition figure could possibly break it.
“What it prevents is the unauthorized negotiations by private citizens,” Joseph diGenova says of the Logan Act. “People on a transition team are not private citizens, they are employees of the of federal government. They get a green check, they get expenses reimbursed. This is expected behavior by a transition team.”
“The Logan Act has been on the books since 1799, and no prosecutor has dared brought an indictment under it because it is probably unconstitutional,” diGenova tells Breitbart News. “The First Amendment makes the Logan Act a little silly.”
Passed on the heels of the Alien and Sedition Acts, the Logan Act became law as a result of its namesake, George Logan, traveling to France in a freelancing effort to settle a violent dispute between the United States and Revolutionary France. The act enraged Federalist Party supporters of John Adams, who held that the responsibility to conduct foreign policy fell to the president and not a private citizen—or even a public servant serving ends at odds with the public’s as expressed by their representatives. To prevent such efforts in the future, Congress passed the Logan Act, which nevertheless did not prevent James McDermott, a Washington congressman who traveled to Baghdad prior to the Iraq War, or Jesse Jackson, whose trips to Syria and Cuba during the 1980s led to the release of Americans held captive, from traveling abroad on their own volition in pursuit of foreign policy goals unauthorized by the president.
“It’s in a time of great concern,” diGenova notes of the 218-year-old law. “You can understand the reason for it. The U.S and France were having huge tensions.”
Nevertheless, diGenova, appointed an independent counsel in the 1990s to investigate George H.W. Bush administration figures for improperly accessing Bill Clinton’s passport information, maintains that in his role as a prosecutor bringing such a Logan Act case would win him ridicule and not a conviction. “You would be laughed at,” he surmises. “You would be laughed at. It would be an embarrassing case to bring.”
“George Logan looked ahead and saw Jessie Jackson in his front view mirror,” diGenova explains, “and decided to copy him.”