More than 140,000 as I write this, I should say. An hour ago, it was 136,000. At this rate, it’ll hit 200,000 by the end of the day.
Ed touched on this in passing earlier but I think we should pause to savor the moment when more than 100,000 Americans join together — on the White House website, no less — to call for arresting members of the Senate majority for the offense of challenging Barack Obama on something he’s worked really hard at. Because, let’s face it, that’s what’s driving this.
On March 9th, 2015, forty-seven United States Senators committed a treasonous offense when they decided to violate the Logan Act, a 1799 law which forbids unauthorized citizens from negotiating with foreign governments. Violation of the Logan Act is a felony, punishable under federal law with imprisonment of up to three years.
At a time when the United States government is attempting to reach a potential nuclear agreement with the Iranian government, 47 Senators saw fit to instead issue a condescending letter to the Iranian government stating that any agreement brokered by our President would not be upheld once the president leaves office.
This is a clear violation of federal law. In attempting to undermine our own nation, these 47 senators have committed treason.
The “tell” is the way the author conflates treason with the Logan Act. They’re separate offenses: One will get you three years in the pen, the other will get you lethal injection. They’re being sloppy about terminology in the petition because they want to use the word “treason,” a term with political resonance that “the Logan Act” lacks. That’s what they’re outraged by — the political, not legal, crime of defying Obama on his big foreign-policy showpiece, despite the fact that the Constitution explicitly empowers the Senate to defy him by granting it veto power over treaties. From war to immigration to health-care reform, the Democratic view of separation of powers ever since Republicans reclaimed the House in 2010 is that Obama has the right to act unilaterally for the common good if the GOP tries to obstruct him. Some lefties are explicit about it. If you hold that view, that Obama has an obligation to work with Congress only to the extent that Congress is willing to do what he wants, then of course you’d see treason here. The Constitution doesn’t apply in cases of partisan gridlock, silly.
In fact, the way Democrats have misread the Logan Act is revealing in how it treats Obama himself as the sum total of the United States government. Steve Vladeck:
The text of the Logan Act makes it a crime for citizens to engage in “any correspondence or intercourse with any foreign government . . . with intent to influence the measures or conduct of any foreign government . . . in relation to any disputes or controversies with the United States.” As Peter explained yesterday, the Senators’ letter certainly seems to fall within this language. But, critically, the citizen must act “without authority of the United States.” Although most assume that means without authority of the Executive Branch, the Logan Act itself does not specify what this term means, and the State Department told Congress in 1975 that “Nothing in section 953 . . . would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.” That doesn’t mean Members would have immunity under the Constitution’s Speech and Debate Clause; it just means the statute would arguably not apply in the first place. Combined with the rule of lenity and the constitutional concerns identified below, it seems likely that contemporary and/or future courts would interpret this provision to not apply to such official communications from Congress.
Is Tom Cotton, a duly elected member of the body that’s authorized to approve treaties, acting with the “authority of the United States” when he communicates with a potential treaty partner about its prospects? If you equate “United States” with “U.S. Constitution,” sure. If you equate “United States” with “Barack Obama,” who heads a branch that’s supposed to be no more powerful than Cotton’s, then no. In a country where one party increasingly views the national legislature as a rubber stamp to be sought for political cover (as with the pending Syria AUMF) or a nuisance to be ignored when it challenges the president, go figure that Democrats prefer the second reading.
And the punchline is, Cotton’s “letter” doesn’t matter at all. As even some lefties have admitted, the “letter” was really just a press release reminding everyone that unless Obama comes to the Senate for ratification of his Iran deal, it’ll have no binding authority on his successor. (One potential successor, Scott Walker, made that point himself yesterday.) If he won’t let them vote on the nuke deal, Senate Republicans can at least warn him what that might cost him. And Iran surely understands that already; they’re not going to make a deal with O without having studied the long-term prospects for its survival. Cotton’s not telling the enemy anything that the enemy doesn’t already know. Obama’s approach to a nuclear non-treaty is the same as his approach to amnesty: Even though he can’t legally bind the next president to it, he’s hoping/expecting that the politics of disrupting the status quo will be sufficiently harsh that not even President Walker will dare meddle with the arrangement he’s left. Again: Politics, not law. That’s what 140,000 people want Republicans arrested over. Of all the awful precedents Obama has left, this sentiment may be the most obnoxious.
Exit question via Joel Pollak: Who’s closer to having committed treason, a guy who issues a press release reciting basic constitutional divisions of power or a guy who’s determined to give a terrorist state known for proclaiming “death to America” a 10-year path to uranium enrichment?