It might. I don’t think it does, but I think a colorable argument can be made.
In Gravel v. United States, 408 US 606 (1972), the Supreme Court considered whether a Senator and/or his staff could be held criminally liable for reading the Pentagon Papers into the Congressional Record with the intent from undermining the administration’s policy in Vietnam, and whether the Senator could privately publish the documents.
They concluded that the reading into the Senate Record was protected, bu the private publication was not:
(Quoting Gravel at 625).
So the question is: does the letter constitute the kind of key behavior that informs or shapes either passage or rejection of proposed legislation OR other matters which the Constitution places within the jurisdiction of either House.
It seems reasonably beyond cavil to me that sending a letter like this does not fall within the kinds of behavior that informs or shapes either passage or rejection of proposed legislation.
However, I’m not so sure about whether it’s not related to “other matters which the Constitution places within the jurisdiction of either House.” As you know, Art II, Sec. 2 of the Constitution vests in the President the power to make treaties, but only with the concurrence of two-thirds of the Senate. Since a treaty is, at heart, any agreement between sovereign nations, it seems at least plausible that the senators can argue that any deal President Obama makes with them is something “…the Constitution places within the jurisdiction of either House,” and is thus protected by the Speech or Debate Clause.
In my opinion, that’s attenuated reasoning. I think Congress could, if it wished, criminalize this conduct without offending the Speech and Debate Clause. But I don’t they have; as I mentioned above, the Logan Act is constitutionally infirm for the reasons laid out in Waldron.
Why couldn’t they simply be educating the audience as to the intricacies of American politics. The reality of which is that our administration changes hands periodically and policy decisions often change over time.
Of course one can. I send you a letter that says, “I have pictures of you engaging in sexual congress with a goat. Pay me $5,000 and I will destroy the pictures; fail to pay and I shall publish these on the Internet and mail copies to your spouse, pastor, and child’s school principal.”
Trust me: I can be arrested for sending that letter.
The question is whether the particular letter at issue here is criminal. I contend it’s not, for reasons described above, but those reasons don’t protect all letters.
Of course not. Conspiracy (in Happy Fun Ball’s scenario) and extortion in your example are already against the law. Isn’t a letter expressing your opinion protected by the First Amendment?
What, specifically, makes you think that? I’ve shown an article in which the Iranian parliament basically recognizes that Congress could sink a nuclear deal. I think that shows some sophistication with respect to understanding the U.S. political system. But you’ve just repeated the same thing a couple times: that Iranians probably think our government is like theirs. Do you have any backing for this belief? Or is it just like me saying that I bet Angela Merkel is a noisy eater, and that Shinzo Abe probably has a pretty good singing voice; as in, just total speculation?
I cited two ways in which Congress – not just a Republican Congress, since there was considerable support in the Democratic Senate for increasing sanctions as these talks were just beginning – could exercise its power to tank the talks. If Iranian leaders believed that Congress was basically powerless in these issues, they probably would have dismissed such efforts as nothing more than hot air. I don’t believe they have dismissed Congress in that way.
Presuming that they don’t understand the structure of the world’s leading superpower baffles me. You think that Iranians don’t understand the structure of Israel’s government? Perhaps they think that Netanyahu is like its own Supreme Leader, too?
I could not, for example, save myself from prosecution for my letter by starting it, “Dear D’Anconia, since in my opinion having sexual contact with goats is wrong (unless you are also a goat), I am saying the following…”
If your opinion is set forth in correspondence that seeks to accomplish some sort of goal, the First Amendment will not necessarily protect it. The First Amendment protects my general statement that banks should give me their money or else. No question about that.
But a note handed to a bank teller saying, “In my opinion, you should hand me all your money. Or else!” is not protected by the First Amendment.
A key point. These people are Senators. They are official representatives of the United States government. They’re not interfering with American foreign policy; they’re setting it.
IOW this is at best irresponsible conduct, of the type we’ve come to expect of these people - who are nevertheless never shy to accuse the President of treason, and are largely the same people who would piously claim that politics “stops at the water’s edge” when anyone dared question the actions of a President of their own party.
Er…
…to make it by passing laws, yes, but not to make it by negotiating with foreign governments. They get to approve treaties, yes, but not to negotiate them. That task is the prerogative of the President, as Art II mandates.
No, because a letter has a sender(s) and a recipient. That places it beyond a publication of general interest and begets the strong inference that it is intended to influence the actions of the recipient.
Putting aside the legal issues, I feel this was a huge political blunder. In the next election, the Democrats will be able to pound the Republicans over the head with this letter. They’ll make a huge issue out of how the President was trying to prevent Iran from getting nuclear weapons but Republican Senators sabotaged him for their own political agenda.
The old rule used to be partisan politics ended at the border. Everybody, regardless of party, would make at least a show of backing the President in foreign affairs. Arguing with the President in front of a foreign power is disquieting even over controversial policies. But arguing with the President when the issue is whether Iran should have nuclear weapons? I think the Republican Senators are going to find even their own supporters will take the President’s side on this one.