What specific laws that are on the books outlaw such behavior, and what is the penalty for violating them?
According to the Logan Act, it is against the law for any individual who is not explicitly authorized by the US government to negotiate with a foreign power.
There are no direct penalties associated with it, though it is a felony, and it has almost never been invoked, but yes, it is indeed against the law.
If the foreign government is doing something illegal, then colluding with them to accomplish that could be argued as conspiracy to commit that thing.
If the candidate or his minions were giving them strategic information, that would seem to violate the espionage laws.
Well, there is the potential for committing treason, if the collusion fits the constitutional definition for treason.
If it’s treason, then there’s no need of an additional charge of “collusion”. That would not have anything to do with the Logan Act, since it would be, well, treason.
The President can’t violate the Logan Act, because he’s the one who does the authorization.
On the other hand, the President is explicitly bound by the Emoluments Clause of the US Constitution:
So any collusion had better not include any presents etc. from the foreign state.
Collusion in general, of course, is not only allowed but expected. What’s negotiation of a treaty, if not collusion?
He can also be impeached, for any reason whatsoever. He could be impeached for chewing bubble gum during meetings. There are no limits. So if the Legislature decided that his dealings with Russia were not kosher, they could get rid of him, regardless of law.
A presidential candidate or president-elect can, however, since he would not have been authorized prior to inauguration. And that’s the question in the OP.
Only one person has ever been indicted under it, and no one has ever been convicted under it since it was passed in 1799. It’s on pretty shaky ground in the modern court, though there are no high court cases dealing with it directly since, again, only one person has ever been indicted under it. Digging up obscure laws that are practically dead and hoping to use them against a sitting president is… probably not the optimal strategy.
Oh, right, I missed the word “candidate” in the OP. In that case, yeah, Logan Act.
As for how often (or rarely) it’s been enforced, how common are violations? I mean, if it’s not violated very often, then it won’t be enforced very often, either.
And really, a candidate or office-holder-elect is about the only person who could violate it: Without at least that, no foreign government is going to even attempt to negotiate with a person, because they wouldn’t have the expectation that the person could hold up their end of any deal, and after the candidate is seated, they’d have the authority to negotiate anyway.
Um, the definition of collude is to work secretly to do something dishonest or illegal. Does the OP mean it that way or do they mean something more like “meet.”
I was wondering this myself … “collusion” carries the connotation of acts that are illegal … so we can start with the crime the collusion brought about … if we’re just considering a candidate in communication with a foreign government then it would depend on the government and any State Dept rules for such communications … and of course the candidate could not represent the US Government without specific authorization … which seems to be what the Logan Law is aimed at …
I think any of us can talk about this season’s Mets with anyone else whether they represent a foreign government or not … but we can’t organize a bribing scheme to make sure they win the World Series …
It might help the aim of being factial to actually quote the rather short paragraph.
They didn’t spread these things across 50 different bills back then. They lumped everything about it in one paragraph !
“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.”
So the elements has to be
- no authority TICK
AND - foreign government TICK
AND - intent … Well if you talk to russians whatever you say is probably to be trusted. TICK seems automatic. You could argue you were just tricking, but since the result of a trick could still influence dispute contreversy or measure… TICK in anycase.
AND
- to influence dispute or controversy or measure (sanction)… Extremely unclear they spoke about a deal of this sort of thing
I wonder if the talk was about why Russians like Putin, and that sort of level.
Even saying something like “Help trump win because trump isn’t into economic sanctions and is into free trade” wouldnt seem to be a strong influence.
Its like talking to a neighbour about the school PCA vote… help me win. Its not influence… However, if it was a lie, then perhaps it could be seen as an “influence” that would not overwise have existed. (the “well its just talk about the obvious” defense is gone, because the suggested influence was contrary to the actual fact.)
What I am getting at is that Trump isn’t into freetrade agreements, so I dont know what inducement could be offered to russia, but perhaps there were lies told, to say “of course we will keep free trade agreement with russia”.
Or “of course we hate islamists as much as you”.
This is wandering into Great Debates territory, but presumably Russia is looking for the removal of sanctions against it and a number of its citizens following the annexation of Crimea and it’s support of the rebels in the Ukrainian civil war.
How can it be a felony if there are no direct penalties? I thought that in American federal jurisprudence, a felony is defined as a crime carrying the death penalty or a term of imprisonment of at least one year.
I’m not sure what k9bfriender is referring to when he says there are no penalties associated with it. The text of the act is pretty clear that there are:
I think this is at least disputable. The constitutional text requires, as I am sure you are aware, “high crimes and misdemeanors”. There’s a lot of ambiguity about what, exactly, constitues a high crime or misdemeanor, and the Supreme Court has held that impeachments are not justiciable, meaning that, in fact, there is nobody who could stop the Legislature from removing a President from office for chewing bubble gum during meetings. But that’s a procedural question; the substantive requirement that impeachment and removal from office is possible only for high crimes and misdemeanors is still there - the Constitution does not there that the President can be removed for any reason whatsoever. We should at least presume prima facie that Congress will apply the Constitution faithfully (even if, in this case, Congress is the only judge to ascertain what a faithful application is), and I find it hard to argue even in that scenario that chewing bubble gum during meetings rises to the level of a high crime or misdemeanor.
Your OP heading refers to “collusion.” If I interpret that to mean conspiring with foreign government agents to violate some federal law, then you have an unlawful conspiracy. But that’s a boring answer because the conspiracy doesn’t have to involve a foreign government agent. The foreign government is a red herring.
Isilder quotes the Logan Act. I think that’s the right idea but as others have noted, no one has ever been convicted of violating it. I doubt anyone can be convicted. The Logan Act prohibits me from carrying on “correspondence or discourse” with foreign governments. But, in general, I have a first amendment right to talk to who I want. This is also a content-based restriction, which is subject to a high level of first amendment scrutiny. There are limits on first amendment rights but none of those limits, in my humble opinion, apply to any of the activities that the news have indicated Trump et al engaged in. There are also arguments that the statute is unconstitutionally vague.
If Trump’s retinue violated the Logan Act, other possible violators include Jimmy Carter and Bill Clinton. In separate incidents, each visited North Korea to negotiate the release of American citizens from North Korean prisons. This is the type of thing the Logan Act would seem to cover. In both cases, they were acting as private citizens and the U.S. government explicitly disavowed their authority to conduct negotiations. Should we throw them in jail?
What about Amnesty International? They send letters to foreign officials about human rights violations that the U.S. government also “disputes.” Lock them up too?
How about U.S. companies who lobby foreign governments about trade, tax, and tariff policies that the U.S government may also be negotiating? Fill the prisons with U.S. businessmen trying to increase exports and save U.S. jobs?
I think the Logan Act is a dead letter. It could be amended to cover situations where a person pretends to be a U.S. official but I think that’s already covered by other statutes. Due to the Logan Act’s current form, we should probably do what prosecutors for over 200 years have done - ignore it.
Violations happen all the time. Jimmy Carter and Bill Clinton have both had direct diplomatic contacts with foreign governments not supported by the state department (including North Korea), Amnesty International and various UN groups containing US citizens routinely pressure foreign governments about violations, and US businesses negotiate with foreign governments for benefits and permits.
And really, talking about ‘won’t be enforced very often’ is disingenuous because of the implications of ‘very often’ - it was attempted to be enforced one time about two centuries ago against the guy it’s named for, and they weren’t able to get a conviction. No one has been indicted under it since, and no one has ever been convicted. It’s not like treason, which is rarely used (less than 30 cases) but has actually been effective (at least a dozen convictions) and is clearly constitutional (it’s defined in the constitution).