Legal Analysis

If Kerry Goes Down For ‘Possibly Illegal’ Activity on Iran, Trump’s Associates Might Follow

In a series of Monday morning tweets, President Donald Trump blasted former Secretary of State John Kerry for “possibly illegal” diplomatic efforts regarding the Iran Nuclear Deal. He should be careful, though, because if Kerry goes down, some of Trump’s associates could be in trouble too.

Trump’s tweet appears to be a reaction to a recent Boston Globe report about Kerry’s supposed meetings with an Iranian official to discuss salvaging elements of the deal that he worked on during President Barack Obama‘s presidency. He also reportedly met with a European Union official and the presidents of Germany and France to discuss Iran. It’s no surprise that Trump would be upset about this, considering he has long criticized not just the deal with Iran, but Kerry in particular for his negotiating skills, but where does the possible illegality come from?

Most likely, Trump is referring to the Logan Act, which prohibits private citizens from unauthorized communications with foreign governments. The Act states:

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.

Based on the language of the Logan Act, Kerry’s activities could potentially be in violation, but it’s hard to say, for two reasons. First, we don’t know exactly what Kerry said or what his exact intention was. Second, the Logan Act has been criticized for being vague, to the point of possibly being unconstitutional. There is also no record of it ever being used to prosecute someone since it was passed in 1799, with the exception of one indictment in 1803 that ended up not going anywhere.

If the Logan Act could be enforced in a situation like this, however, that would mean it could also potentially be used in situations regarding Trump’s own associates.

“The Logan Act has no more applicability here regarding Secretary Kerry’s actions than it did when Michael Flynn and members of the Trump transition team were engaging in shady and questionable communications with the Russian Government after the 2016 election,” national security attorney Brad Moss told Law&Crime.

“If the Trump Administration starts taking the position that the Logan Act can in fact be constitutionally applied,” Moss added, “it would expose individuals like Jared Kushner to unwanted additional legal scrutiny for their own acts during the transition.”

Basically, the Logan Act has been kept on the shelf for hundreds of years for a reason, and if Trump’s Justice Department suddenly decides to start using it, it could end up being used against members of Trump’s own transition team.

Ultimately, though, Moss dismissed the Logan Act as a possibility, saying that Trump’s tweet should at best be taken as “political hyperbole,” unless it turns out that Kerry violated a separate statute.

[Image via Zach Gibson/Getty Images]

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