In one of the most stunningly, unfathomably, incomprehensibly chuckleheaded moves in all American political history, 47 Senate Republicans (including Majority Leader McConnell, and potential 2016 presidential candidates Marco Rubio, Rand Paul and Ted Cruz) have signed Arkansas Freshman Senator Tom Cotton's letter to top Iranian officials informing them that any nuclear deal they reach with President Obama would be “nothing more than an executive agreement” that could easily be tossed out when a new president takes office. (“The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time,” the letter reads in part.)
To call this letter an act of unmitigated chutzpah would be to miss the mark by at least a couple of hundred parsecs. It presupposes that a deal which has not yet -- and perhaps never will be -- reached between Iran and the so-called "P5+1" will be a terrible deal.
The senators' letter drew the immediate ire of the President who, showing a remarkable bit of rhetorical restraint said it was "somewhat ironic to see some members of Congress wanting to make common cause with hardliners in Iran."
Vice President Biden, who during his 36 years in the United States Senate twice chaired the Foreign Relations Committee, said, “I cannot recall another instance in which senators wrote directly to advise another country — much less a longtime foreign adversary — that the president does not have the constitutional authority to reach a meaningful understanding with them."
Even Iranian Foreign Minister Mohammed Javad Zarif was astonished by the Republicans' letter; in his rather lengthy response, he suggested that the lawmakers "not only do not understand international law" — a subject in which he is a professor — "but are not fully cognizant of the nuances of their own Constitution when it comes to presidential powers in the conduct of foreign policy."
Responding to all the negative commentary about Cotton's letter, Senator John McCain -- who likewise was one of the signatories -- tried to downplay the enormity of his colleagues' contempt for the president by calling the matter "a tempest in a teapot." But it is far, far from that; in historic terms, it is on a par with last week's speech by Israeli Prime Minister Netanyahu before a joint meeting of Congress -- largely (though not completely) unprecedented and a direct assault on the Constitutional separation of powers. As with the Speaker's invite to Netanyahu, Republicans rationalize this latest act by claiming that they are merely seeking to counter what they call "illegal, unilateral moves" on the part of a president they appear to hate even more than a nuclear Iran.
In truth, there was another time when Congress sought to take the foreign policy reins out of a president's hands. The year was 1919; the president was Woodrow Wilson (like Obama, a professor of law); the issue, the League of Nations. In that case, Congress refused to ratify the treaty Wilson brought before them. Then too, there was a 20-year period in the late 19th century when the senate declined to ratify any treaty at all; contemporary observers actually became convinced that it would never do so again. But it should be noted that there is a whale of a difference between refusing to ratify a president's treaty and inserting the legislature into the negotiations directly -- and while it is still going on. The situation with Wilson and the League of Nations or the late 19th century senate, though politically difficult and undoubtedly causing hard feelings, was perfectly within Constitutional bounds. The case of Senator Cotton's letter -- and perhaps even Speaker Boehner's invitation to Bibi Netanyahu -- is anything but within Constitutional bounds. And it just could be that in their all their wayward infantile idealism -- that "we're going to do what we want to do and not compromise one iota" -- they may well have stumbled into a legal quagmire of epic proportions.
At this point it is appropriate to introduce "Old Doc Logan" -- the fellow whose name appears in this essay's title. George Logan (1753-1821) was a Pennsylvania-born grandson of William Penn's personal secretary. Trained as a physician at the University of Edinburgh School of Medicine, Doc Logan would go on to serve a single six-year term in the United States Senate at the turn of the 19th century. Two years before his election to the senate, Logan, who was a Jeffersonian Republican, went as a private citizen to Paris to negotiate with the French in order to settle the so-called "Quasi War." Incensed at this action -- which put a feather in Thomas Jefferson's cap for the upcoming 1800 presidential election -- the good doctor's political enemies back in Washington passed the so-called "Logan Act," which firmly prohibited a private citizen from undertaking diplomatic negotiations.
As enacted by Congress, the Logan Act states: 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.
In 1936, the Supreme Court issued a decision in a case called United States v. Curtiss-Wright Export Corp. In this case, Curtiss-Wright was charged with conspiring to sell fifteen machine guns to Bolivia, which was engaged in an armed conflict with Paraguay. This violated a Joint Resolution of Congress and a proclamation issued by President Roosevelt. Justice Sutherland wrote in the majority opinion:
[T]he President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.
Well now, if my reading of the Logan Act -- which is still the law of the land -- is correct, and if we are to accept the court's decision in U.S. v. Curtiss-Wright Export Corp., which has never been overturned -- that in inviting the leader of Israel to speak to Congress without the president's assent, Congressional Republicans are in violation of the Logan Act. And more importantly, directly telling leaders of Iran that America won't honor President Obama's negotiated commitments is likewise a blatant and egregious violation of the Logan Act.
Are there any lawyers out there interested in filing a suit before we reach a Constitutional crisis? Please: let me know. I'll be waiting by the phone, staring at a likeness of George Logan . . .
Copyright©2015 Kurt F. Stone