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

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.