Iran letter stirs debate on meaning of 'sent'

Fans say Cotton didn’t mail it, broke no law; critics say it went out, see breach

Arkansas’ U.S. Sen. Tom Cotton is shown in this file photo.
Arkansas’ U.S. Sen. Tom Cotton is shown in this file photo.

WASHINGTON -- A letter to Iranian leaders by Arkansas' U.S. Sen. Tom Cotton earlier this month has unleashed a debate on the meaning of "correspondence" in the digital age and whether the letter violated a 216-year-old federal law banning citizens from communicating with foreign officials.

In the weeks since the letter was made public, liberal writers have argued that it was an improper interference into the executive branch's responsibility to negotiate foreign policy. Conservative writers seeking to defend Cotton's letter argue that the action didn't violate the Logan Act of 1799 because it wasn't actually mailed or emailed to anyone.

Two law professors, contacted for this article, disagree over whether the letter can be seen as violating the Logan Act, though they both say that how it was communicated doesn't matter under the law.

Cotton, a Republican from Dardanelle, didn't mail or fax the missive that he wrote and had 46 of his Republican colleagues sign. Instead, he posted it on his official Senate website March 9 as an "open letter" and sent messages specifically to the Middle Eastern country's leaders via Twitter directing them to his website. His office also sent out a news release about the letter.

He sent a message to the Twitter accounts of Ayatollah Ali Khamenei, President Hassan Rouhani and Iranian Foreign Minister Mohammad Javad Zarif that states, "I wanted to make sure you saw this open letter from me and 46 of my colleagues." Cotton followed it up with another Tweet that included a photo of the letter translated into Farsi and a message that said, "also, in case you need a translation."

The Logan Act prohibits a private citizen from corresponding directly or indirectly with a foreign government unless that person is acting under the authority of the federal government. Both professors said the signers likely won't be charged, in part because no one has ever been convicted of violating the Logan Act. But, violating the Logan Act is punishable by up to three years in prison and a $5,000 fine.

The Logan Act was inspired by the actions of American Quaker George Logan, who sailed to France in the 1790s and met with the French government in an attempt to stave off a war between the two countries over trade and jailed American seamen.

Since then, multiple administrations have alleged violations of the act. The law makes it a crime when "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." Only one Logan Act indictment has ever been filed. That was in 1803, over an article in a Kentucky newspaper.

Cotton's March 9 letter drew quick criticism of him and the other 46 signers from President Barack Obama, Secretary of State John Kerry and from Zarif, the American-educated Iranian foreign minister, who responded with his own letter back to Cotton, which was written in English and sent to the senator via Twitter.

Cotton's letter said that without congressional approval, an agreement being negotiated by Iran, the U.S. and several other countries on the future of Iran's nuclear capabilities could be revoked when Obama leaves office in 2017.

Cotton spokesman Caroline Rabbitt said the senator never envisioned sending a printed copy of the letter to the leaders, but instead planned to release it to the general public. She said posting it to his official website and broadcasting that it was available through Twitter seemed to be the best route for disseminating it.

"The letter was always intended to be an open letter. You don't typically mail open letters," she said. "To some degree, if it's an open letter then in our case Arkansans, the American people, can also see that the Congress is trying to communicate their role to the people doing negotiations out of Tehran."

Cotton never considered sending a paper letter through mail or fax, Rabbitt said.

To send a four-page letter to Iran via first-class international mail would have likely cost less than $3, according to the U.S. Postal Service.

Normally, when Cotton announces that he has sent a letter to the president or an executive branch official, a physical copy is sent via fax and given to the agency's legislative affairs office, Rabbitt said.

On Cotton's Facebook page, posts about the letter refer to it as an "open letter" to Iranian leaders and a "letter sent to" Iranian leaders.

Rabbitt said the senator didn't consider whether an open letter posted online rather than a physical letter mailed to Iran was more or less likely to violate the act.

"We still don't believe that we were in violation of anything like that," she said. "That was never a consideration."

Cotton, a former Army captain, has a law degree from Harvard University.

Some critics have questioned whether the Republican senators who signed the letter should face charges. The New York Daily News printed photos of several Republican senators, including Cotton, on its front page with the headline "TRAITORS." The hashtag #47Traitors has been used more than 445,000 times on Twitter since the letter was disseminated, according to Topsy analytics, a website that tracks responses on social media.

In the weeks since the letter was distributed, commentators with National Review, National Journal and the Los Angeles Times have said the letter was never sent and thus didn't violate the Logan Act. Others pointed to what they said was similar interferences in foreign policy by Democratic senators over the past few decades.

"Had Cotton & Co. actually delivered their communique to Iran's mullahs -- perhaps via a Swiss diplomatic pouch or something even more cloak and dagger -- their critics would be on less swampy ground in calling them 'traitors,' as the New York Daily News screamed," conservative columnist Deroy Murdock wrote in National Review on March 16.

Philadelphia's Temple University constitutional law professor Peter Spiro said it's irrelevant how the letter was sent because the Logan Act refers to direct or indirect correspondence with a foreign government.

"If you look at the text of the act, this pretty clearly qualifies as a direct or indirect correspondence with a foreign government," Spiro said. "The fact that it didn't get put in a mailbox? That's ridiculous as a distinction."

He said directing the letter to Iranian leaders was enough to violate the act.

"If Tom Cotton had just gotten on CNN and said exactly the same thing that is in that letter, nobody would have cared a whit. The fact that it took the form of a letter to the leaders of Iran prompted the controversy," he said.

Law professor Stephen Vladeck of American University in Washington, D.C., agreed that how the missive arrived doesn't matter, however he said the signers could argue that as sitting U.S. senators, they were acting under the authority of the U.S. government.

"I suspect Sen. Cotton would argue that letters sent in his official capacity as a member of the U.S. Senate are by definition with the authority of the United States," he said. "The strongest argument that he didn't violate the statute is that he was acting in his legislative capacity and was therefore acting with the authority of the United States. I'm not sure I buy that, but it's probably a good enough argument to make this issue just go away."

Vladeck said it would be difficult to find a prosecutor willing to take on such a case. The previous indictment for violating the Logan Act was in 1803, and the legal standards of freedom of speech under the First Amendment have changed a lot since the law was put in place, he said.

"The larger problem is that the Logan Act is a relic of an era in which Congress routinely criminalized political differences," Vladeck said. "It was enacted at about the same time as the heavy discredited Alien and Sedition Acts."

Signed into law by President John Adams in 1798 in an attempt by Federalists to silence the Democratic-Republican Party, the Alien and Sedition Acts authorized the president to imprison or deport aliens considered "dangerous to the peace and safety of the United States" and restricted speech critical of the government. The four acts were unpopular. Congress repealed some of them, and the others were allowed to expire.

Spiro said discussion about the method used to send the letter is just hypothetical.

"All of this is academic because nobody is going to get prosecuted under the Logan Act, but if there were ever a good case for prosecution, this is probably as close as it gets to a pretty clear case," Spiro said.

Come election time, most people won't remember the letter, how it was sent or questions about whether it broke the law, University of Arkansas at Little Rock assistant professor Greg Shufeldt said.

Those currently debating the issue likely have made up their minds on it, he said. Everyone else isn't likely to be swayed by arguments over how the letter was communicated.

"It's really only the elites that are having this discussion, the die-hard activists, the Bill Kristols and the editorial pages of the Wall Street Journal. The reach of those publications and those entities is to people that are tuned in right now, and if you are paying attention to politics in March of 2015 at the national level, you probably have already made your mind up for the foreseeable future," Shufeldt said.

THE LETTER can be seen online at www.cotton.senate.gov/content/ cotton-and-46-fellow-senatorssend-open-letter-leaders-islamicrepublic-iran.

SundayMonday on 03/29/2015

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