Let me begin by saying that I recognize only ONE TRUE "Logan Act." That is the act of Wolverine (whose name is Logan) unleashing his adamantium claws and staring fiercely through the 4th wall of the movie screen.
Yes, a serious article on the Logan Act will eventually follow this...
On December 4th, Seth Abramson posted a thought-provoking thread on Twitter about the Logan Act, the recently re-ignited Act of Congress from 1799 (now referenced as the measure to possibly convict multiple participants of the Trump Campaign), under which no one has ever been convicted. The law summarily "criminalizes negotiation by unauthorized persons with foreign governments having a dispute with the United States. The intent behind the Act is to prevent unauthorized negotiations from undermining the government's position." But I don't mean to pose that lack of use, by itself, is a disqualification for federal law.
Abramson attacks this position early in his thread, citing vaguely that "Republicans also give the impression no one's ever been charged with a violation of 18 U.S.C § 953—which is *also* false." While people have been charged (thus alluding perhaps to its continued relevancy), still no one has ever been convicted.
Abramson continues to address the lack of convictions, positing that
"the reason The Logan Act has never resulted in a conviction is that there are *almost no situations in which it applies*. And there are almost no situations in which it applies because there is *almost no one in America so stupid and corrupt* as to try to violate it."
I tend to agree with this. The idea that a private citizen would attempt to negotiate with a foreign government without the authority of the United States seems impotent and impossible to execute. The foreign government would never take the private citizen seriously, and the citizen has realistically no chance at clandestinely breaking this law.
Thus, Abramson cites this futility for most citizens as the very reason this statute could apply to Trump, Flynn, and their transition team as he states "Only a citizen on a presidential transition team could credibly claim to be able to set US policy—because they *will* be able to do so, in a month or so—and only a hostile foreign power *wouldn't* call up our government to check to see if the citizen is acting with authority."
After being very specific with the text of the Logan Act, Abramson moves for the kill-shot as he cleverly (or accidentally) obfuscates the literal text and begins to substitute the circumstantial parties at play saying "So the purpose of The Logan Act—a federal criminal statute that's survived repeal for 218 years—is to PREVENT an incoming presidential administration from effectuating a *months-long* "soft coup" of the validly elected administration it's replacing. See how important that is?" He finishes the explanation now substituting the names of the guilty actors at play: "And do you understand now why Flynn lied about what he did? And why Pence lied about it? And why Trump lied about it? And why the entire Trump Presidential Transition Team sat silently by while Flynn, Pence, and Trump lied to America about what they all agreed to do together?"
Wrapped neatly in the package of a ridiculous number of tweets, Abramson satisfies to himself the logic needed to uncover the true relevancy of the Logan Act as a safeguard against an incoming administration and to utilize that translated statute against Trump's transition team.
Except that's not what it says...
The Act doesn't mention premature negotiations by duly elected officials. In fact, it doesn't even forbid private citizens from negotiating with foreign governments. It DOES criminalize that negotiation for "Any citizen of the United States, wherever he may be, ..., WITHOUT AUTHORITY of the United States." Authority is not bestowed by inauguration. It isn't even necessarily bestowed by election. So when was authority granted to the Trump transition team? It is frequently and customarily granted by the State Department of the outgoing administration (and rightfully so). A representative of Obama's State Department refers to that here:
The questioner asks: "So there’s nothing – this building doesn’t see anything necessarily inappropriate about contact between members of the incoming administration and foreign officials —"
Mr. Toner replies "No."
Questioner: — no matter what country they’re from?
Mr. Toner: No.
Questioner: Right?
Mr. Toner: No. And again, this has been ongoing...
So, not only is it commonplace for a transition team to undertake these duties of establishing relations with a foreign government preemptively, but it is even recorded as being authorized and followed by the outgoing State Department! I can only hope that this article reaches Mr. Abramson, and he is able to defend or correct his statements. Even if the Logan Act is still considered vital and poignant, THIS IS NO OFFENSE OF IT.