by Playthell Benjamin
Some Constitutional Scholars think so and I agree
Anyone listening to the chatter on the right of our political spectrum will no doubt have heard the phrase â€śaccording to the Constitutionâ€ť ad nauseum. It is quoted among this crowd as if it were Holy Scripture. Which, ironically, is quite fitting since the exact meaning of both is ambiguous and therefore open to multiple interpretations and endless speculation. Hence many students of the evolution and character of this foundational document disagree on its meaning.
The letter to the leaders of Iran, written by Tom Cotton, an iconoclastic freshman Senator from Arkansas, and signed by 46 other Republican Senators who should have known better, advising their leaders against concluding the nuclear weapons agreement President Barack Obama is presently negotiating, begs questions about the division of powers between the various branches of government â€“ the executive and legislative branches in the present case â€“ and whether Senators must obey federal laws in the exercise of their prerogatives.
The law in question here is the Logan Act of 1799, which expressly states:
â€śAny 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.â€ť
In the opinion of Temple University Law Professor Peter Spiro: â€śThis letter seems squarely to satisfy the elements of the law.â€ť If this is true, then 47 members of the US Senate are guilty of treason! Let us consider the text of the Republican letter. Titled An Open Letter to the Leaders of the Islamic Republic of Iran, the letter states:
â€śIt has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system. Thus, we are writing to bring to your attention two features of our Constitution â€” the power to make binding international agreements and the different character of federal offices â€” which you should seriously consider as negotiations progress. First, under our Constitution, while the president negotiates international agreements, Congress plays the significant role of ratifying them. In the case of a treaty, the Senate must ratify it by a two-thirds vote. A so-called congressional-executive agreement requires a majority vote in both the House and the Senate (which, because of procedural rules, effectively means a three-fifths vote in the Senate). Anything not approved by Congress is a mere executive agreement.â€ť
First of all the letter is an embarrassment because of its misreading of the constitution on the relative powers of the President and the Congress in the conduct of US foreign relations. Although much is made of the fact that Senator Cotton is a Harvard Law School grad, he nevertheless made a critical error when he argues that treaties with foreign countries must be â€śratifiedâ€ť by two thirds of the Senate. Yet one need only look at the explication of the role of the President and Congress provided on the Senate Webpage â€“ which is easily accessible to the hubristic Senator â€“ to recognize that he has inflated the Senateâ€™s role. The relevant passage reads:
â€śThe Senate does not ratify treaties. Instead, the Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent, empowering the president to proceed with ratification.â€ť
He is also dangerously wrong on his interpretation of the constitutional mandate for the Senate to â€śAdvise and Consentâ€ť on questions of foreign relations. For in the matter of treaties the Senateâ€™s role is not invoked until after the President has completed his negotiations with a foreign power. Hence what these Senatorâ€™s did was clearly illegal! By my close reading of the Logan Act, I think Professor Spiro is right on the money in his opinion that the Republican letter â€śseems squarely to satisfy the elements of the law.â€ť
As with all important federal legislation the intention of the architects of the law must be understood and considered in our interpretation of its meaning. The Logan Act is named after Dr. George Logan, a member of the Pennsylvania State Legislature that was elected to the US Senate, who attempted to interfere in US foreign policy by holding negotiations with the French government in 1798, just 15 years after John Jay negotiated the Treaty of Paris officially ending the Revolutionary War with England.
However the Bon homie that characterized the relationship between the French and the English colonies in North America during the revolutionary era had deteriorated to the point where the two nations were on the brink of war by 1798. This situation led the recently formed United State of America to pass several laws in order to insure the security of a country composed of many nationalities, some of them Frenchmen or sympathizers with France.
Hence Congress passed the â€śAlien and Sedition Actsâ€ť to prevent those who supported France from abusing the right to free speech through open advocacy of the French cause, especially aliens. They also passed the Naturalization Act which changed the residency requirements for naturalized citizens from five to fifteen years, and they passed the Logan Act to prevent American citizens from meddling in matters of foreign diplomacy, which is clearly defined as a presidential prerogative.
Viewed from this historical perspective the violation of the letter and spirit of the Logan Act by the Republicans becomes even clearer when we look at Supreme Court precedents in their ruling on the Constitutional separation of powers between the Executive and Legislative branches of our Federal Government: which is based on a three-fold division of power between the Executive, Judicial and Legislative departments that â€ścheck and balanceâ€ť each other.
One of the definitive rulings cited by legal scholars on this question is the opinion of Justice George Sutherland, in the 1936 case of the United States v. Curtiss-Wright Export Corp. â€śThe President alone has the power to speak or listen as a representative of the nationâ€ť the Justice concluded. â€śHe makes treaties with the advice and consent of the Senate; be he alone negotiates. Into the field of negotiation the Senate cannot intrude and congress itself is powerless to invade it.â€ť So there you have it.
Although given the politics of the situation it is unlikely that these Republican Senators will be prosecuted. Yet their scandalous attempts to subvert the Presidentâ€™s efforts to conduct foreign policy negotiations with the intent of achieving a treaty with Iran regarding nuclear weapons, and avoid starting yet another war in the Muslim world, exceeds their constitutional authority and clearly violates the Logan Act. Since they all pledged under oath to â€śdefend the Constitution against all enemies foreign and domestic,â€ť they are guilty of treason most foul!
However it is a safe bet that they will not be prosecuted for their crimes against the nation; indicting 47 Senators of the opposite party for treason would be too easy for right-wing bloviators in the media such as Rush Limbaugh and Sean Hannity and their spawn to make it look like a partisan bloodbath. Yet the reaction from the print press, even the conservative newspapers, has been caustic; the Republican Senators have become the objects of sustained ridicule. The New York Daily News, a major daily with a large working class readership, greeted the Senatorsâ€™ letter with the bold headline â€śTraitors!â€ť
The intensity and contempt of the major media has conspicuously shaken many of those who signed Joe cottonâ€™s letter. Dr. Rachel Maddow of MSNBC reported last evening that some of the Republican Senators are now saying that they were not serious, and all the hoopla results from the fact that â€śthe Obama Administration canâ€™t take a joke.â€ť It is clear that many realize that they have screwed up and it could cost them a shot at the presidency in the next election. Hence the best way to chastise these reckless Republicans is to whip their asses at the polls. Alas, while I have no doubt that these scoundrels have committed treason, I believe the problem will be solved politically: at the ballot box not the courtroom.
Benjamin is a veteran political journalist out of Harlem NY. His essays can be read on his blog site Commentaries on the Times.