In the wake of the GOP's 47-fools letter to Iran, there have been calls here to prosecute the offending Senators under the Logan Act, which forbids non-executive interference with U.S. foreign policy. A variation calls for the prosecution of said Senators for treason. Honestly, when I first saw those calls, I figured they were obvious hyperbole (though somewhat understandable, given the seriousness of the situation). But apparently people are taking them seriously, so...
As clever as they sound, Logan Act prosecutions would be a major mistake. They're not justified legally. They're not smart practically. And, most importantly, they let the GOP 47 off the hook for their real offense: attempting to provoke military conflict with Iran.
More below the fold.
First, the legal argument. There has never been a single conviction under the Logan Act in its 200 years of existence. That's because the Logan Act is likely unconstitutional, a violation of the First Amendment. Admittedly, it's never been tested... because it's so clearly unconstitutional that it's never been tried! Reagan's Justice Department kicked it around when Jesse Jackson went to Cuba and Nicaragua in the '80s and criticized US policy, but decided not to prosecute. And that's not because they secretly admired Jesse Jackson. I'm only an amateur where constitutional law is concerned (took a year-long class, but not a lawyer), but my guess is that a Logan Act conviction in this case would be overturned by the Supreme Court by a vote of 9-0. (If the shoe were on the other partisan foot, it would be 7-2 or 6-3, but that's another story...)
As for the shouts of treason - have we learned nothing from the Bush years? Just because our political enemies are doing something we think is terrible for America doesn't make them traitors. I guarantee the Republicans think that what they're doing is good for America. They're nuts, but crazy isn't a crime and irresponsible speech isn't treason. Yet people have quoted John Ashcroft to me today ("the Constitution is not a suicide pact"), and done so... approvingly?! I'm truly surprised at this development. We're better than this. We have an obligation to defend freedom of speech and the First Amendment, even - in fact, especially - when the speech makes us angry.
Logan Act prosecutions are also a bad idea practically for the simple reason that right now, we're winning this argument. Before these morons sounded off, there was a chance that Congress would impose new Iran sanctions with a veto-proof majority. Not anymore. It's made the Democrats, even the ones who weren't really with Obama on Iran, furious. But if we were to pursue prosecutions, the story would immediately change. Instead of the irresponsibility of the GOP, the focus would be on the government's prosecution of its political enemies. Instead of buffoons, the Republicans would look like victims. It would validate every single crazy thing they believe about the government and about Democrats. Why give them what they want?
Prosecutions also wouldn't stand a chance in hell of working - there's essentially no chance of a conviction and exactly zero chance of it surviving judicial review.
All of this, though, is small potatoes compared to the real problem with focusing on the Logan Act. We know that what the GOP 47 did is wrong. But why? It's not because they violated some obscure 200-year-old law. I think we all know that's not the real point. The real point is that their letter attempts to lead us down a path to war with Iran. Such a war would be an absolute disaster for the broader Middle East (what tacit anti-ISIS cooperation?), for Israel, and for us. This is the point we need to be making at every turn.
Focusing on questionable legal technicalities such as the Logan Act would change the subject and let the GOP off the hook for trying to start a war. They'd be delighted. As it is, thanks to their incompetence, we have a real chance to prevent a historic tragedy, and that's what really matters here.