Speaker John Boehner's invitation to Israeli Prime Minister Bibi Netanyahu to speak to a joint session of Congress in early March, 2015 about "the grave threats radical Islam and Iran pose to our security and way of life", without clearing it first with, or even notifying, the White House or the State Department almost certainly violates the Logan Act and is a felony, punishable by up to three years in prison.
The Logan Act, passed in 1799, prohibits ("a)ny citizen of the United States,…who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or agent thereof,…to defeat the measures of the United States." It is settled law that "the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress is powerless to invade it." U.S. v Curtiss-Wright Export Corp., 299 U.S. 304 (1936), quoting the Supreme Court majority opinion by Justice George Sutherland.
By inviting Netanyahu to address Congress on a subject which is currently being negotiated by President Obama and the State Department with Iran, in an attempt to undermine the President's position, and not even having the courtesy to notify the White House first, fits exactly within the prohibitions of the Logan Act. Boehner should be prosecuted for this offense by the Justice Department.
Boehner has already brought suit against the President in federal court for recently exercising his executive authority regarding U.S. immigration laws. Boehner's latest ham-handed action is another example of his disrespect for the President and the Executive Branch, and threatens to unbalance the balance of powers if it is not attacked by the White House.
Past Uses of the Logan Act
In 1941, the Roosevelt Administration stated that former President Herbert Hoover might be subject to prosecution for negotiating with European nations over sending food relief. In 1967, an indictment of Stokely Carmichael was considered (but not done) for his visit that year to Hanoi during the Vietnam War. During the 1968 Presidential campaign, Richard Nixon's campaign advisors, through Anna Chennault, advised Saigon to refuse participation in peace talks promising a better deal once Nixon was elected. Defense Secretary Clark Clifford thought this action to be illegal, and President Lyndon Johnson called it treasonous, but he decided not to take action because it would reveal that the NSA was intercepting communications between the Vietnam government and the Nixon campaign.
In 1975, Senators John Sparkman and George McGovern were accused of violating the Logan Act when they traveled to Cuba and met with government officials there. The State Department concluded that the intent of the Logan Act "is to prohibit unauthorized persons from intervening in disputes between the United States and foreign governments. Nothing in [the Act] would appear to restrict members of the Congress from engaging with foreign officials in pursuance of their legislative duties under the Constitution." The State Department went on to find that it "was fully informed of the nature and purpose of their visit, and had validated their passports for travel to that country."
In Boehner's case:
- his intent clearly is to interfere with the President's and the State Department's negotiations with Iran;
- he did not notify or clear Netanyahu's invitation beforehand with the Executive Branch; and
- he is not having discussions with Netanyahu in furtherance of the legislative duties of Congress, but is giving him free reign to try to undermine U.S. foreign policy.
In 1984, President Ronald Reagan stated that Reverend Jesse Jackson's trip to Cuba and Nicaragua that year (and his return to the U.S. with several Cuban political prisoners seeking asylum) may have violated the Logan Act, but he did nothing. In 1987 and 1988, Reagan criticized House Speaker James Wright's "intrusion" into the negotiations between Nicaragua's Sandinista government and the Contras for a ceasefire in their civil war, but again did nothing about it. In 2007, Rep. Steve King (of "calves like cantaloupes" fame) introduced legislation to prohibit then-Speaker Nancy Pelosi from drawing on public funds to travel to Syria for a dialogue with the Syrian government, but it went nowhere.
Boehner is desperate to hold onto his Speakership, and he is pandering to the Teabaggers and right wing Republicans in the House (25 of whom recently voted against him to be Speaker) any way he can. There is also the possibility that if Boehner was to accept campaign money from Netanyahu, or use his speech to help raise money for Republicans, he could violate the Federal Elections Commission law, which makes it illegal for "a person to solicit, accept or receive a contribution or donation" from a foreign national. If Boehner should pick up the phone and ask Sheldon Adelson, or other GOP billionaires who support anything Israel wants, even if not in the interests of the U.S., to make such a contribution, this also might violate the FEC law.
Boehner was caught in 1995 handing out tobacco industry corporate bribes for favorable votes on the floor of the House; the same conduct resulted in the expulsion of another Ohio Congressman guilty of corruption. And he continues to advocate the Keystone Pipeline, ignoring the conflict of interest created in 2010 when he bought stock in seven Canadian tar sands companies who would benefit from the pipeline.
At the very least, Boehner's hypocritical invitation to Netanyahu to speak to Congress two weeks before Israel's election should be rescinded, or Netanyahu should think better of it and decide not speak.