Why The GOP Iran Letter Is Spurring Debate Over An 18th Century Law

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Its doubtful that Arkansas Sen. Tom Cotton (right) will face legal consequences for the letter he wrote to Iran. The Logan Act hasn't been used to prosecute anyone since it was passed more than 200 years ago. Lauren Victoria Burke/AP hide caption

itoggle caption Lauren Victoria Burke/AP

Its doubtful that Arkansas Sen. Tom Cotton (right) will face legal consequences for the letter he wrote to Iran. The Logan Act hasn't been used to prosecute anyone since it was passed more than 200 years ago.

Lauren Victoria Burke/AP

It may have been politically rude, but was the open letter 47 Republican senators sent to Iran this week illegal?

As of Wednesday afternoon, more than 160,000 people had signed a petition asking the Obama administration to pursue federal charges against the senators, accusing them of violating an 18^th century law.

The petition states:

"Forty-seven United States Senators committed a treasonous offense when they decided to violate the Logan Act, a 1799 law which forbids unauthorized citizens from negotiating with foreign governments."

It concludes:

"This is a clear violation of federal law. In attempting to undermine our own nation, these 47 senators have committed treason."

Legal experts and historical context, however, suggest their argument probably wouldn't hold up in court.

So what is the Logan Act? Unless you're familiar with rarely-used Revolutionary War-era laws, you may have never heard of it.

The law is a result of tensions between France and the U.S. toward the end of the 18^th century. In 1797, President John Adams sent three special envoys to France, but negotiations stumbled and the U.S. began preparations for war.

Enter George Logan, a Philadelphia Quaker, doctor and Republican. In 1798, he sailed across the Atlantic to negotiate with the French as a private citizen. The U.S. government disapproved of Logan's meddling and shortly passed the Logan Act, which calls for fines and up to three years in prison.

Steve Vladeck, a law professor at American University, says it would be tough to prosecute the 47 senators under the Logan Act.

The law makes it a crime for citizens to interfere in foreign policy "without authority of the United States." As Vladeck explains in the Lawfare blog, the Logan Act doesn't actually specify what this means, though most experts assume it refers to the authority of the president.

Because the senators are members of the U.S. government, however, it seems unlikely that courts would view them as "unauthorized citizens."

And it's important to note that no one has ever been prosecuted under the Logan Act, according to a 2006 Congressional Research Service report. In fact, the last time someone was even indicted was in 1803 — a Kentucky farmer wrote a controversial article in a local paper, but charges weren't pursued.

In 2007, then-House Speaker Nancy Pelosi caused a stir when she met with Syrian President Bashar al-Assad, with some conservatives saying it violated the Logan Act.

And Slate has a list of other public figures accused of similar violations — from Sen. George McGovern to Jane Fonda and from the Rev. Jesse Jackson to President Richard Nixon.

Daniel Drezner summed up the latest Logan Act debate this week in The Washington Post:

"I don't think an open letter from members of the legislative branch quite rises to Logan Act violations, but if there's ever a trolling amendment to the Logan Act, this would qualify."