Claire McCaskill: What say we prosecute Trump under the Logan Act for what he said about Russia?

Via Mediaite, what say we repeal the Logan Act instead? No one’s ever actually been prosecuted under it in 200 years. It exists, as far as I can tell, only so that the party in power can claim the opposition may have committed an honest-to-goodness federal crime by doing something provocative on foreign policy. It’s a way to accuse a political enemy of something like treason when their actions obviously don’t support a charge of treason. (The last time people started farting around about the Logan Act was when the Senate GOP sent a letter to Iran warning them that the Senate would have to approve Iran’s nuclear deal with Obama.) Here’s all you really need to know about the Logan Act: If we couldn’t use it to send Ted Kennedy to prison for asking the Soviets for help with the 1984 election, we shouldn’t use it, period.

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.

Read the part about “carr[ying] on correspondence or intercourse” broadly enough and I guess you could prosecute Trump for speaking rhetorically to Russia at a press conference, although the law’s obviously aimed at bona fide negotiations between private citizens and foreign governments. The idea behind it is to ensure that the government has exclusive power to settle disputes with other countries and doesn’t somehow get outbid or undermined by its own citizens. The more broadly you read the law, though, the more problematic it becomes. If someone writes a blog post arguing that Russia should release Hillary’s work-related emails because they were supposed to be a matter of public record anyway — it’s a matter of transparency and accountability — is that a Logan Act violation? It’s “correspondence” insofar as it’s available online for Russia to read. If the post is titled “An Open Letter to Russia,” does that improve the case? What if the blogger sends the link to the Russian embassy?

The obvious answer is that the Republican nominee isn’t some random blogger. His public requests to foreign powers carry an implicit promise of quid pro quo if he comes to power, creating a real inducement for Russia to act. But then you have a different problem: How much do you want to use the Logan Act to handcuff public officials or would-be public officials from talking to other countries? Nancy Pelosi met with Bashar Assad in 2007, shortly after she became Speaker, despite objections from the Bush administration that it undermined their policy of isolating him internationally. The meeting was an obvious signal to Assad that he had an audience willing to listen to him among U.S. Democrats, if not Republicans. You could have tried prosecuting Pelosi for that under the Logan Act but then you’d be telling the most powerful Article I official in the federal government that she can’t displease the guy at the top of Article II by simply holding a meeting with a foreign leader. Trump isn’t an official of any sort — yet — but he’s close enough that he now enjoys Secret Service protection and is about to begin receiving briefings from U.S. intelligence. And courts don’t like to mess around in political debates, particularly in the middle of an election. He’ll be accountable to voters for playing footsie with Russia this fall, just as Pelosi was after she met with Assad. They can decide whether what Trump said crossed a line of propriety.

Speaking of which, yesterday the defenses from Trump fans of his Russia comments fell into one of four groups: He was joking, he was right, he didn’t say what people are accusing him of saying, and of course he was playing eight-dimensional chess that mere mortals such as us can’t really comprehend. I thought the best defense was the third one since it had a germ of truth to it. Trump didn’t explicitly encourage Russia to hack Clinton, as many media outlets reported; he did encourage them to interfere in the election to his benefit by leaking what they had, although he tried to clean that up later by insisting, surreally, that he meant they should leak it to the FBI. Regardless, he went all-in this morning on the first theory, that he was joking, when he told Fox News that his message to Russia was merely sarcasm. Is that so? It usually doesn’t take 24 hours plus a deadly serious damage-control statement from the VP nominee before it’s made clear that a joke was a joke, but okay. I like the irony at least of Trump using the Jon Stewart “clown nose on, clown nose off” defense given how often Stewart attacked him over the years. Do you like what Trump/Stewart had to say? Then he was being serious. Do you not like it? Then he was kidding and you should lighten up. Works well for a late-night satirist. I’m sure it’ll work just as well for a guy whose every word as president helps decide whether people live or die.

Here’s McCaskill plus Mark Levin yesterday failing to find the humor in “the joke.” Easy prediction: Within a week, he’ll forget that he was supposedly joking yesterday and will call on Russia to release her e-mails again.

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