*This piece originally appeared on Just Security.
by Ryan Goodman, Co-Editor-In-Chief of Just Security and Anne and Joel Ehrenkranz Professor of Law at New York University School of Law and Steve Vladeck, Co-Editor-In-Chief of Just Security and Professor at The University of Texas School of Law
The news from overnight that National Security Adviser Michael Flynn has resigned over his inappropriate pre-Inauguration dealings with Russia has also reinvigorated the debate over whether he can and should be prosecuted for violating the Logan Act, 18 U.S.C. § 953. Although Steve has previously suggested that the Logan Act could not be used to prosecute members of the presidential transition team (if it could be used at all, given that it has been moribund for over 200 years and is, in any event, a content-based restriction on speech), an exchange over e-mail between us about Steve’s prior post led to this Q&A that more fully fleshes out those arguments:
Ryan to Steve: You wrote that the spirit of the Logan Act, if not its letter, would not apply to members of an incoming presidential transition team. But the White House appears to be saying that Flynn was going rogue on those phone calls, that he never cleared it with them to speak about the sanctions, and that he lied to them about the content of the calls afterwards. If that is true, would it not throw out the window an analysis that says a person acting in their capacity as a presidential transition team member does not come under the Logan Act? Flynn would have been acting not only “without authority of the United States,” but also without authority of the presidential transition team.
Steve to Ryan: It might. But the absence of any Logan Act prosecutions means that there has been no judicial analysis of what it means to act “without the authority of the United States” in this context. For example, it is not clear to me that a serving Cabinet officer—who we all agree would ordinarily exercise the “authority of the United States”—would violate § 953 if he engaged in unauthorized communication with a foreign government with the “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.” The question is whether “authority of the United States” in this case literally requires the president’s (express or tacit) approval of the content of the communication (which, contra another post of mine, would likely mean that members of Congress would often act without such authority), or whether it just means under color of U.S. authority. I think the better reading of the Act’s text is the latter—but that is especially true if the former reading would potentially raise some of the constitutional concerns to which I have previously alluded.