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What is the Logan Act and what does it have to do with Michael Flynn and President Trump?

Michael Flynn, former national security adviser for President Donald Trump, acknowledge in court last week that he had conversations with Russian officials during the transition period between the election and Trump’s swearing-in, then lied to the FBI about doing so. 

According to charging documents, Flynn pleaded guilty to lying to the FBI about actions that took place after the election, during the transition.

While many have speculated that Flynn is a subject of the investigation of possible Russian meddling in the 2016 presidential election, the documents do not allege collusion or conspiracy with Russian officials prior to the election. The documents instead refer to two discussions Flynn had with Russian officials in the months after the November 2016 election.

The first conversation involved Russia’s reaction to a United Nations resolution on Israeli settlements. The other conversation concerned President Barack Obama’s executive order on Russian sanctions. According to Flynn, each time, “senior officials” on the Trump transition team directed him to convey certain information.

While Flynn, a retired Army lieutenant general, was charged with lying to the FBI, what he lied about – conversations with foreign governments during the transition – is covered by a two-century-old law called the Logan Act.

Here’s a look at the Logan Act and what Flynn’s legal jeopardy would be if he were indicted on suspicion of violating the act.

What is the Logan Act?

The Logan Act, (18 U.S.C. § 953) is a 218-year-old law that prohibits people outside of the US executive branch from interfering in U.S. foreign policy.

The law reads:

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.

Has anyone ever been prosecuted under the Logan Act?

No one has ever been prosecuted under the Logan Act, though at least two people appear to have been indicted under the act. 

Why isn’t someone who breaks the law prosecuted?

Most refer to the Logan Act as “dead letter,” or a law that remains on the books but is essentially not prosecuted. Some believe the law is unconstitutional – restricting free speech – and vague.

What have the courts said about the Logan Act?

Not much, since there have been no prosecutions under the act. Courts have commented on the Logan Act, and in 1964, the U.S. District Court for the Southern District of New York said of the Logan Act that there exists a “doubtful question with regard to the constitutionality of that statute under the Sixth Amendment. That doubt is engendered by the statute's use of the vague and indefinite terms, "defeat" and "measures." Neither of these words is an abstraction of common certainty or possesses a definite statutory or judicial definition.”

Should Flynn be worried about prosecution under the Logan Act?

Probably not, given that in more than 200 years, no one has been prosecuted for violating it. The more pressing legal trouble would involve lying to the FBI, something Flynn admitted doing.

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