Can Pelosi be prosecuted under the Logan Act for meeting with Assad?

posted at 8:28 pm on April 6, 2007 by Allahpundit

The statute’s been around for 200+ years and no one’s been prosecuted yet, let alone the Speaker of the House. So needless to say, whether she can be or not, she won’t be.

But as a strictly intellectual exercise, here’s the statute for your consideration:

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.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

If they tried to prosecute her, the case would turn on the phrase “without authority of the United States.” She’s third in line to the presidency, her lawyer would argue; as an elected official and the de facto leader of the legislative branch, she’s got all the authority she needs. The counterargument would be that the “authority” in question means constitutional authority to conduct foreign policy as invested exclusively in the president under Article II. The counter-counterargument to that would be to claim that Article II doesn’t invest the president with any omnibus power over foreign policy, only certain defined powers:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

So long as she’s not trying to make a treaty, she’s not stepping on the president’s toes. The problem with that is that the constitutional text itself is not the final word — Supreme Court decisions are, and the decisions in this area (most notably the Curtiss-Wright case) are exceedingly expansive of the president’s authority. So if it came to this, the Supreme Court would have to revisit the Curtiss-Wright jurisprudence and decide whether the president’s powers are in fact as broad as they once said they were. The vote would be 4-4 with Anthony Kennedy as usual casting the deciding ballot.

And trust me, my friends: you wouldn’t like the way that ballot would end up being cast.

If somehow she lost on the “authority” point, the fallback argument would be to finesse the definition of “disputes or controversies” to exclude our current situation with Syria. That’d be a tough sell given their posture towards Iraq and the fact that we’ve recalled our ambassador, but they’d figure something out.

I do think it’s cute, though, how she’s now trying to claim that she met Assad as Bush’s de facto emissary even as he and Cheney continue to holler about what a crappy idea her visit was. Quote: “It became clear to President Assad that even though we have our differences in the United States, there is no division between the president and the Congress and the Democrats on the message we wanted him to receive.” Really? While the papers are full of headlines about Bush vowing to veto her withdrawal bill?

Maybe this is her way of hedging her bets a tiny bit on the Logan Act accusations or maybe she’s just on a hot streak of taking people for idiots. Whichever it is, it’s annoying. In any case, I can’t put it any better than Amir Taheri:

The most radical elements in the region liked Pelosi best if only because she endorsed their campaign of vilification against the Bush administration. Her motto was: Surrender before you have too, and claim credit for it! She represented a superpower that, because no one can take away anything from it, is prepared to give away everything.

The Pelosi Doctrine, as demonstrated during the tour, is the opposite of the Bush Doctrine spelled out in 2002.

Some emissary.


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I don’t know if she could be tried under the Logan Act, but she is dumber than box of rocks.

djohn669 on April 6, 2007 at 8:33 PM

There are days that I really wish Bush was everything that the moonbats claim he was. That way Olbermann, Pelosi, Kerry, Murtha, Kennedy, et all would be quietly locked away in secret CIA prisons for the good for the children.

Unfortunately, unlike the moonbats, we still believe in the rule of law, instead of the rule of the mob.

E L Frederick (Sniper One) on April 6, 2007 at 8:42 PM

Article X of the Bill of Rights, AKA the Tenth Amendment, would, if it had ever been enforced even a little bit, quash the counter-argument to the Article II argument.

The Legislature was not granted such powers under article II, thus they have no such powers.

Mind you, I don’t expect this to be prosecuted either. Democrats are quite clearly above the law.

Merovign on April 6, 2007 at 8:43 PM

Intent is always impossible to prove isn’t it? I think the key word is “intent”

lorien1973 on April 6, 2007 at 8:45 PM

Yeah, intent would be a sticking point if the law here was limited to “defeating” the measures of the United States. But as it is, it includes intent to simply influence a foreign government. By her own admission, Pelosi was trying to do that (specifically, to influence Assad into intercepting suicide bombers before they enter Iraq).

Allahpundit on April 6, 2007 at 8:48 PM

By her own admission, Pelosi was trying to do that (specifically, to influence Assad into intercepting suicide bombers before they enter Iraq).

Allahpundit on April 6, 2007 at 8:48 PM

Rove made her do it… That would be her defense.

E L Frederick (Sniper One) on April 6, 2007 at 8:50 PM

It will never happen. But it does make one wish there were a way to deal with this kind of issue. A congressional junket is one thing, an unauthorized diplomatic mission is something completely different.

King of Fools on April 6, 2007 at 8:52 PM

It’s because they realize that Bush, like no other president before him, would fail to use his powers to prosecute their treason that these Democrats do it so openly.

It will be a good question to ask the Republican presidential candidates: “Would you have prosecuted Pelosi under the Logan Act?”

We can’t elect another president who will fail to live up to his duty during war time even as he asks the soldiers he commands to live up to their duty.

Perchant on April 6, 2007 at 8:56 PM

Legal or not, the Dems have been purposely usurping the traditional role of the executive. Their little Syrian prostate massages are troubling at best. I’m not ignoring those RINOs who made a similar visit a couple of days ago.

On the bright side, they seem to be better suited to the pressures of being in the presence of ME lunatics than British sailors and marines.

SailorDave on April 6, 2007 at 8:58 PM

Lucianne got this one on a big bingo!!!! “Until not there’s been no evidence that severe cosmetic surgery causes brain damage……Now we wonder!!!”

NEMETI IN SYRACUSE on April 6, 2007 at 9:02 PM

Sorry that’s Until now not not

NEMETI IN SYRACUSE on April 6, 2007 at 9:03 PM

She represented a superpower that, because no one can take away anything from it, is prepared to give away everything.

Eloquently stated. Similar to a Superpower strong/armed like a lion, when the world knows it would never act like one. In a way this is very complimentary to the U.S.A., if only it would get credited. Instead the SP gets vilified for being contained.

More on topic – if a branch, after the Executive, has foreign policy power, it is the Senate. Outside of those committees on foreign relations/funding, the Congress should mind its own business, unless they have little of significance on their plate.

I have a hunch Nancy Pelosi wants to run for President in ’08. This ‘power’ thing has gotten a hold of her little brain…

Entelechy on April 6, 2007 at 9:05 PM

The Republicans have assumed the mantle of “being above” investigations and endless dead end hearings.

{READ: The GOP has become a pack of GUTLESS TURDS!}

seejanemom on April 6, 2007 at 9:07 PM

Heh…XDA fantasizes about a Pelosi perp walk.

*sigh* We can dream, I suppose.

flipflop on April 6, 2007 at 9:10 PM

As long as you spelled “Curtiss” with two esses, I’m okay with this post.

commissar on April 6, 2007 at 9:12 PM

I don’t know if she could be tried under the Logan Act, but she is dumber than box of rocks.

djohn669 on April 6, 2007 at 8:33 PM

Roger that. Unfortunately there are no laws against stupidity.

Pilgrim on April 6, 2007 at 9:13 PM

It would be interesting, though, if a special investigation were to be convened to determine if Pelosi DID, in fact, violate the Logan Act.

If Lantos’ comments were relevant, an investigation might keep Pelosi et al from meddling for a year or so ….

…If there was any doubt that her [Pelosi's] trip was intended as far more than a routine Congressional “fact-finding” trip, House Foreign Affairs Chairman Tom Lantos put it to rest by declaring that, “We have an alternative Democratic foreign policy. I view my job as beginning with restoring overseas credibility and respect for the United States.”

Gull on April 6, 2007 at 9:15 PM

From Rich Galen at Townhall:

…consider how the US press would have handled this story if everything were the same except the Speaker had been named “Newt” and the President had been named “Bill.”

Oh yeah.

IrishEi on April 6, 2007 at 9:19 PM

VERY interesting. I bet, though, that if the Justice Department were actually to open an investigation into the Pelosi felony matter, the very next word out of Pelosi’s mouth would be, “IMPEACH!” If Bush wants Washington to grind to a total halt for 21 months, he’ll get Alberto Gonzales on this matter right away.

On the other hand, not much less would get done than is already.

flutejpl on April 6, 2007 at 9:28 PM

The fact that he told her not to go should be enough to hang her on the “intent” issue.

csdeven on April 6, 2007 at 9:34 PM

I ca almost garantee that not only did absolutely nothing com efrom that meeting with Assad, but Pelosi told him “to just bide his time until 2008, and ‘when the dimz’ get voted in, you can deal with Us, because we will be more agreeable”.

Unless a CLEAR violation has been made, there will be no prosecution. 2 reasons:
First, this can be politic gold. “Look at the dimz. They are not cooperating, and undermining our efforts at every turn, especially with our enemies.”
Second, if they prosecute Pelosi, and DON’T have a rock solid case, they’ll impeach Bush. Do you see the implications, there?

If they get an impeachment, there will be no conviction. The case is too weak. The only reason they are blabbering for it is revenge for Cliton.

Mazztek on April 6, 2007 at 9:36 PM

It seems, since there is so much discussion on her and her transgressions, we are OWED an explanation from the AG or the President WHY she will not be charged. She should be required to pay the taxpayers back to avoid jail time. The House members should remove her from her position, so that she will not spend time in jail.

That is what I would propose.

CrimsonFisted on April 6, 2007 at 9:41 PM

I think the President should go for it. Throw her ass in jail. Put on the cuffs and give Pelosi a perp walk. Go on the offense and get the lefties on defense. By the time the air even starts to clear, he is out of office. While I am dreaming, I would like to see it happen.

Wade on April 6, 2007 at 9:41 PM

A congressional junket is one thing, an unauthorized diplomatic mission is something completely different.

King of Fools on April 6, 2007 at 8:52 PM

Her foolishness in conducting her own foreign policy is bad enough, but added to that is the fact that she decided to do so for Israel as well:

The meeting with Assad, she told reporters, “enabled us to communicate a message from Prime Minister [Ehmud] Olmert that Israel was ready to engage in peace talks as well.”

Olmert never authorized her to say any such thing.

What a blithering idiot!

Imagine how fast they would be sucking up and surrending to our enemies all around the world if they gain power in ’08.

91Veteran on April 6, 2007 at 9:52 PM

they would do it to bush.

kara26 on April 6, 2007 at 9:59 PM

Oh, House Haji Pelousy will be convicted, alright, and it will be in a court where weasel words and endless attempts to appeal mean nothing, nothing at all.

And I’ll be laughing my backside off.

Misha I on April 6, 2007 at 10:07 PM

Use a play from the DEM book. Investigate investigate investigate, many days of questions under oath, when she slips up, jail for purdury.

- The Cat

MirCat on April 6, 2007 at 10:14 PM

AP, are you a lawyer? Just curious. You sound like one … when you’re on these posts.

On the posts about 50-ft robotic Michael Jacksons shooting lasers out of their gloved hand, I’m not sure you sound like a lawyer .

Anton on April 6, 2007 at 10:22 PM

It’s been a good couple of weeks for the terrorists.

They’ve made a mockery of the United Kingdom, the Royal Navy and the U.S. Speaker of the House.

Note to the world:

They are the bad guys, 9/11 really happened and something a hundred fold worse than 9/11 will happen in the not too distant future. Nobody’s showing any interest in stopping the terrorists. Everyone’s too busy kissing their collective @sses or hiding their head in the sand. It’s like 1939 all over again.

Shame on the appeasers.

fogw on April 6, 2007 at 10:23 PM

Ok all of you liberal trolls (who have decided to take a vacation during this blog), this is who you want to represent us. Someone who does not have any respect (a soccer game was more important), someone who does not respect the office of the President (Bush says he would rather have her not go), someone who misleads leaders (Olmert gives his regards), and further undermines our government policy (says she delivered Bush’s message, but the message was stay home).

This is what you call a “loose cannon”, hardly leadership material.

right2bright on April 6, 2007 at 10:31 PM

Just wnated to share with my fellow hotairheads that registration is now open on LGF. I’m finally a Lizzard.

greggish on April 6, 2007 at 10:31 PM

Forget what I said above. Registration was open for about 10 minutes and then closed again.

greggish on April 6, 2007 at 10:33 PM

I thought it was the Executive branch that has authority to negotiate with foreign governments. So, Allah, are you saying she only bent the law and didn’t break it??? This wasn’t any fact finding mission that I could tell. She was clearly delivering a message and that should be a violation of the Logan act. At least my understanding of the law. She did that on her own authority, and not by anyone in the State Department.

Can anyone explain to me why this is NOT a violation of the law?

Kini on April 6, 2007 at 11:20 PM

Can anyone explain to me why this is NOT a violation of the law?

Kini on April 6, 2007 at 11:20 PM

Turner at OpinionJournal makes a good case.

91Veteran on April 6, 2007 at 11:24 PM

Allah notes quite well that Article II only gives certain explicit, not omnibus foreign policy powers to the executive. That said, I just went through Article I looking for legislative powers that we would put under the umbrella term “foreign policy,” and I really couldn’t find any. Perhaps a couple items could secondarily be called as such, but I think the first words to come to mind about those things would be others, such as “trade” and “war.”

There definitely is a foreign component to some trade, far more today than there was in 1787. Having said that, Congress’s authority seems more regulatory than exploratory. They’re not there to say, “You can trade with A, B, C, and not X, Y, and Z” as much as to say, “We’re going to allow you to import from A, B, or C, but we’ll be adding a tariff.”

War is foreign policy only in that it’s the natural outcome of failed forms of what we normally call foreign policy today.

There is that blurb about the Senate’s having to ratify treaties that the Executive negotiates. That bit appears in Article II, though, clearly showing that the Executive comes first in this process. As for Pelosi, she’s not even in the Senate! So what if she were, though? If the President says that she shouldn’t go and she does, it seems logical that she’s illegally overstepping, and one doesn’t even need the Logan Act for that. She’s not upholding the Constitution, and it’s expellable by Article 1′s sections.

The more I look at it, the weaker Nancy Pelosi’s case looks. I wonder if she’s saying “Duh!” yet! As W surely doesn’t want the label “IMPEACHED” next to his name in history, though, I still say he’ll never get Gonzales onto it… and the House surely won’t get the 2/3 required to expel her.

flutejpl on April 6, 2007 at 11:38 PM

Did Pelosi break the law…CERTAINLY SHE DID.

Will the Bush Administration DO anything about it?

NO WAY.

And THAT’S part of the reason that the GOP is probably about to lose it all in the next election. Real American’s are so tired watching the seditious traitor liberal democrats get away with murder while the DO NOTHING GOP sits by and does its usual NOTHING.

NRA4Freedom on April 6, 2007 at 11:42 PM

Why even have a “statute”, or law, if it is never enforced?

Oh, sorry, “it is illegal to enter the United States illegally…”

My bad……..

PinkyBigglesworth on April 6, 2007 at 11:47 PM

Its the seriousness of the charge that’s what’s important. Arrest her, and then drag your feet in the prosecution, like they did with Delay. Keep the cloud over her head.
Republicans claim they stand for law and order, and while they accept the consequences of their actions, their reluctance to hold the libs responsible for their’s undermines Republican credibility.

Iblis on April 7, 2007 at 12:06 AM

Looking at it from an originalist view, our government, as laid out in 1787, is the first of its kind. Some countries had figurehead parliaments, but the real power was in the “executive” in the form of an emperor, king, or other potentate who would be rather aware of his own self-importance. Granted, Nancy Pelosi has no trouble with that last bit…

Let’s say that someone like Nancy Pelosi had tried to undercut Jefferson’s policies toward Napoleon and the Louisiana territories in 1802 by going to France to try to fix things himself. Such a person surely would have ended up sans head. Napoleon maybe would have written Jefferson a note telling him of the favor he’d done him and to tell him to get his so-called House in order.

Looking at this matter in the guise of the time when these laws were written makes it perfectly clear who has the power in this matter and who doesn’t.

flutejpl on April 7, 2007 at 12:12 AM

While no one may have been prosecuted under Logan, I can’t think of anyone more deserving than Nancy Pelosi. She’s obviously drunk with power re: the delusional claim that her trip strenghened this nation’s ties with Syria. Right – just as Bill Clinton’s nuclear weapons treaty w/ North Korea strengthened our ties to the North Koreans. Pelosi is clearly insane.

SpartRan on April 7, 2007 at 12:24 AM

If anyone has any doubt how this effects the view the world has of the USA, just ask yourself what would be our feelings toward the Syrian government if a high level Syrian official came to the US and supported our view that Assad is a terrorist?

I know that isn’t an apple to apple comparison because we are the good guys and it would be morally correct for a person to break from terrorism and for us to support him. In both cases the host government looks weak. She makes us look weak, not reasonable. They are the enemy and are not interested in finding common ground, their sole goal is to subjugate our society to theirs. And Pelosi has become their ally in that quest.

csdeven on April 7, 2007 at 12:44 AM

From what I read, the Logan Act is more for threatening than anything else. No convictions ever and only one indictment, back in 1803.

Not being a ‘Legal Beagle” myself, it appears to be a useless law on the books.

Still, that doesn’t change the fact of Pelosi setting up her own shadow presidency and undermining the administration during war.

Statements made by Israel and Syria both show her to be a fool who hasn’t a clue about Diplomacy or anything else.

Only the left would think her unconstitutional act appropriate or useful. All she did was continue emboldening the enemies of the U.S.

LewWaters on April 7, 2007 at 2:10 AM

If every Democrat that has gone to the middle east to treat with our enemies, starting with Jim McDermott and Jay Rockerfeller through Pelosi and Lantos, were arrested under Logan, the Republicans would have effective control of both Houses of Congress, including a filibuster-proof Senate an and impeachment-proof House.

If we are lucky, maybe some of them will resist arrest be given the baton treatment (the preverbial “wooden shampoo”).

georgej on April 7, 2007 at 3:00 AM

she is dumber than box of rocks.

djohn669 on April 6, 2007 at 8:33 PM

I never get tired of that phrase. Especially when it fits.

spmat on April 7, 2007 at 4:04 AM

I have a splendid idea.

The Republicans should draft a Non-Binding Resolution that tells Pelosi to get out of the Middle East in the next 120 hours.

Yeh! That’s the ticket.

pocomoco on April 7, 2007 at 4:19 AM

she is dumber than box of rocks.

djohn669 on April 6, 2007 at 8:33 PM

Such an insult to all those rocks inhabiting boxes..

Viper1 on April 7, 2007 at 8:48 AM

Pelosi Galore!

I fear this little VayCay to the Middle East is just the beginning of her shananagins.

silenced majority on April 7, 2007 at 9:32 AM

I’m afraid that NRA4Freedom is correct. The GOP lacks the intestinal fortitude to prosecute Pelosi. The Dhimmy’s can break any law they want without fear of punishment.

Dubya is asleep at the switch. He doesn’t seem to understand the Dhimmy’s want the U.S. to lose and aren’t afraid to break any amount of laws to make sure that happens. I wish he would listen to the Blogosphere and take some kind of action against the Fifth Column which is in this country.

Mooseman

Mooseman on April 7, 2007 at 9:47 AM

Sorry to digress, but first they should prosecute Sandy Berger.

Of all the disappointments of the past few years, this and Harriet Myers are probably the most disheartening.

petefrt on April 7, 2007 at 10:03 AM

Good point Allah. She damn well ought to be!!!

Aylios on April 7, 2007 at 10:06 AM

If you use Pelosi’s rules, it doesn’t matter whether she violated the Logan Act, and it doesn’t matter whether you can prove intent or any of the other elements of the crime. If you use Pelosi’s own rules, none of this matters.

What matters is the seriousness of the charge and the ferocity with which it is prosecuted. What matters is how effectively you can use the charge as the instrument for embedding an emotional bias against your adversary.

Rational argument is a largely ineffective means of refuting an emotional bias. Usually an emotional attack requires another emotional appeal to refute it. The left understands this. That’s why so often they win and we lose.

Maybe it’s time to choose whether to use Pelosi’s own rules against her, or just bend over and grab our ankles from here on out.

petefrt on April 7, 2007 at 10:28 AM

As you’ve shown, Article II gives the President the power to appoint ambassadors. He did not so delegate to Pelosi the authority to represent the United States to other nations. This was precisely what Logan himself was doing, prompting Congress to pass this law in the first place.

Her two safe harbors could be:

1) She was interceding on behalf of one or more US citizens who had some personal beef with the Syrian government. She has not thus far attempted to advance this theory.

2) She was not in opposition to the enunciated Bush Syria policy.

But she screwed up bigtime by saying that she relayed part of a conversation with Olmert. At that point, she couldn’t possibly have been just telling Assad the Lesser the exact Bush position. Instead, she was explicitly pretending to speak for Israel!

The Monster on April 7, 2007 at 10:31 AM

she is dumber than box of rocks.

djohn669 on April 6, 2007 at 8:33 PM

Not even my Pet Rock is that dumb!

RedinBlueCounty on April 7, 2007 at 11:54 AM

How on earth did John Kerry escape Logan act prosecution when he was talking to the North Vietnamese in Paris in ’71, or Daniel Ortega in the mid-80′s?

Golden Boy on April 7, 2007 at 12:54 PM

The Dems play the legal game all the time just look at what they did to Delay with no basis. That one may well have cost the last election and it was done with nothing substantial in the way of evidence. Also ask yourself why Libby was convicted of “nothing” and Berger who actually committed a major crime got off essentially with nothing.

It is time to play some “hardball” in the other direction. She obviously violated the Logan act and she should be brought up on charges.

duff65 on April 7, 2007 at 2:54 PM

Olmert never authorized her to say any such thing.

She seems to be taking the title of “Speaker” to the extreme, thinking she not only speaks for her district, but for the whole country. And not only for the whole US, she speaks for any other country she decides to represent.

taznar on April 7, 2007 at 7:14 PM

The stong ties between the Dhimmicrats and the Islamists is pretty obvious, they’re strategy is the same in one regard. Goes along the lines of “if we can’t defeat you directly, we will do anything we can to undermine, embarass, weaken you and generally make your life a living hell until you capitulate”.

This is just another example of the Dems generally and Pelosi specificaly trying to completly take over control of the government without having to win the whitehouse. Both groups are trying to establish power on their own terms, and regardless of the effect on American national security.

P. James Moriarty on April 8, 2007 at 12:08 AM

Now Hoyer is getting into the act. According to the AP, he has met with the opposition leader to Egypt’s Mubarak. Again, Codi refuses to meet with these people because it could weaken our relationship with a very powerful ally in the middle east.

The dems are power hunger for sure!

csdeven on April 8, 2007 at 12:55 AM

Despite claims of the opposite by the left, Bush is not an idiot. He is going to save this ace for when impeachment is pushed. Don’t be surprised if Pelosi in the near future changes her tune on impeachment.

calirighty on April 8, 2007 at 1:15 AM

The Pelosi Doctrine, as demonstrated during the tour, is the opposite of the Bush Doctrine spelled out in 2002.

Also known as the French Doctrine or white flag doctrine.

Rick on April 9, 2007 at 1:03 AM