Will Trump Be The First Person Prosecuted Under The Logan Act?
Can the President be convicted of high crimes and misdemeanors while sitting in office? If Mueller finds something, will Republicans call for impeachment?
The President has a certain level of what's referred to as sovereign immunity but does that extend to the President actually committing crimes, particularly before he was in office? Because some of these allegations are coming from late December of last year.
For example, the Logan Act violations.
The Logan Act is a law that was passed in 1799. It's a real old law and what they were concerned about back then was, first of all you had about a third of America who'd been opposed to the American Revolution to begin with and still wanted us to be part of England. And the founders and framers and the early legislators were very conscious of that.
So probably by the time the Logan Act was passed there was a broad consensus that this is America, but they were worried about anybody trying to go out and do foreign policy on behalf of the United States when foreign policy is the province of the President of the Executive Branch, the State Department.
And so the law says that if you're engaging in foreign policy with a foreign government, you have broken the law. Now, only two people have ever been prosecuted under the Logan Act in the 200 years it's been on the law books and nobody's ever been convicted.
But it looks like that's the big one, that Kushner and Flynn may have breached by talking to the Russian ambassador and saying don't overreact to the sanctions that President Obama's putting in. Keep in mind, Barack Obama was President of the United States at the time that Mike Flynn was reaching out to the Russians and saying don't freak out about the sanctions.
That's a fairly clear Logan Act violation for Flynn.
If Trump ordered it, it's also a clear Logan Act violation for Trump.
I'm very skeptical that they would prosecute him for this, particularly given the fact that nobody has ever been successfully prosecuted under this law. That's the biggest problem although the Supreme Court reaffirmed in 1991 in a case before the court that the Logan Act is still a viable thing.
But the principal way that you hold the President accountable for pretty much anything is through the process of impeachment and there is a conviction that happens in the United States Senate. Bill Clinton was not convicted - his conviction was short one vote. Same with President Andrew Johnson in 1868, who'd been Abraham Lincoln's Vice President.
So it seems to me that the principal vehicle that we have to focus on would probably be impeachment.
Now there's a third option, too, that is not a criminal one, it's not a legal one, it's not using the courts - and that's the 25th Amendment. And that's if the Vice President and the Cabinet or a majority of the Cabinet agree that the President is "unable to discharge the powers and duties of his office" then they submit that to the House of Representatives. The House representatives vote on it and boom, the President is gone and the Vice President becomes becomes the President.
So we'll just have to wait and see.
We're in one of those points in time right now where we really don't know what Mueller has on these guys or what he might still get. So there's still a way to go and let's just hang on.