Social Media: Not the Place to Go for Sober-Headed Legal Analysis

There has been a lot of debate about the letter sent by 47 Republican senators to the Iranian regime regarding the negotiations over nuclear energy use–likely for weapons–by Iran. I happen to think that sending the letter was a bad idea; foreign policy has been found to be the province of the executive branch, with a few exceptions, and I generally don’t like it when people of either party freelance in opposition to any White House when it comes to foreign policy–even if I disapprove of the White House’s foreign policy.

But while it is one thing to disapprove of the letter, it is another thing to sign on to two of the sillier claims that have polluted social media over the past day or so. Those claims are as follows:

  1. By sending out the letter, Republican senators “committed treason.”
  2. By sending out the letter, Republican senators committed a Logan Act violation.

Let’s take this nonsense in turn.

First, the treason claim. Art. III, Sec. 3 of the Constitution of the United States defines treason as follows:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Republican senators are not “levying war” against the United States. Also, they are not “adhering to their enemies, giving them aid and comfort.” Thus: No treason. This is a remarkably easy call, but you wouldn’t know it from reading all of the self-proclaimed lawyers pontificating on Facebook and Twitter.

Now, the Logan Act claim. First of all, the claim is defeated by the Speech or Debate Clause, which can be found in Art. I, Sec. 6, and which states the following in pertinent part:

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

“But Pejman,” I hear you cry, “the letter doesn’t constitute ‘speech or debate in either House’!” Well, actually, it likely does, my fine-feathered friends. I give you Gravel v. United States, in which the Supreme Court stated that a written communication may be considered protected by the Speech or Debate Clause if it is:

an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.

Senators will likely be able to claim that the letter to Iran relates to “the consideration and passage or rejection of proposed legislation” in the event that any nuclear deal with Iran is presented as a treaty, or in the event that enabling legislation is needed to pass any executive agreement. Certainly, as foreign policy oversight–including, but not limited to advice and consent given to treaties–is placed in the Senate, the senators will also be able to claim that the letter relates to “other matters which the Constitution places within the jurisdiction of either House.”

Even if the Speech or Debate Clause were not found to apply, the Logan Act would likely not be found to have been violated in this case. As Steve Vladeck points out, the legal justification for a violation of the Logan Act is just not there.

So much, then, for the absurd contention that 47 Republican senators are going to prison, or might be convicted of the capital crime of treason. Let’s note a few other things in addition:

  1. A whole bunch of non-Republicans chortled when the foreign minister of Iran, Mohammad Javad Zarif, allegedly schooled the 47 Republican senators on international law. In fact, Zarif didn’t know what he was talking about.
  2. As we continue to peruse Jack Goldsmith’s excellent post, note that back when Joe Biden was a senator, he demanded that a nuclear arms reduction agreement with Russia be approved via the treaty process. Now, we are supposed to believe that treaties are bad, and that executive agreements are the way to go. Why? Because the president is a Democrat and the Senate is controlled by Republicans. What a shock.
  3. Let’s remember all of the times when Republican presidents had their foreign policy positions undermined by Democratic freelancers. They include (a) the “Dear Commandante” letter to Daniel Ortega (see also this);(b) Nancy Pelosi visiting Syria; (c) Jimmy Carter writing to leaders of other governments on the Security Council in order to frustrate attempts by the George H.W. Bush administration to obtain a resolution authorizing the use of force to liberate Kuwait from Iraq; and (d) Edward Kennedy asking the Soviets to help Democrats defeat Ronald Reagan in 1984(!) in exchange for Kennedy “lend[ing]” the Soviets “a hand” in dealing with Reagan. None of the people yelling and screaming about treason and Logan Act violations over the past day or so ever said one word about these attempts to undermine White House prerogatives when it comes to foreign policy. Wonder why?

Comments

  1. Thanks, I’m with you, they should’ve kept their mouths shut but can’t believe all the treason nonsense.

    Thanks for the explication.

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