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April 12, 2015




Following my commentary on those who “got away with it” is, I think, this Part II  timely commentary on those who are “getting away with it,” and in broad daylight. I refer to a situation that is being swept under the rug because of the identity of the prospective defendants, all 47 of them, senators who have expanded their constitutional duties from making laws to breaking them, namely, the Logan Act, for one.  Apparently senators cannot be prosecuted for committing criminal acts that are done in broad daylight while others such as those discussed in Part I hereof are prosecuted and convicted and serve big time for crimes they perhaps did not even commit. It seems the new test for convening grand juries and seeking indictments by prosecutors has to do with who you are rather than what you did. Poor people are indicted; senators are not and even brag about the crime they have committed as though it were a mark of distinction arising from laudable conduct. Talk about chutzpah!

I have been a lawyer and sometime prosecutor for nearly 60 years and I have never known of a case in which, for instance, a bank robber publicized his or her intention to rob a bank, and then proceeded to rob such a bank right on schedule. Crimes and conspiracies to commit them are, in my experience, contrived and connived in secret. You don’t call the police chief or FBI and tell them what bank you are going to rob, the address and time of day you intend to burglarize a house etc. You and your cohorts (and in my experience invariably) hatch up such conspiracies in secret and with minimum fanfare away from the prying eyes of the law.

As I need not reiterate at length since I have blogged on this anomaly before, these 47 senators openly and notoriously wrote and published a letter to the Iranian government which gave aid and comfort to Iranian hardliners in asserting that Iran should not make any agreement on its atomic program with the United States because the Congress would undo it when they well knew that the Logan Act proscribed what they were doing as a felony and that they were acting unconstitutionally, since foreign relations are the exclusive preserve of the executive, an exclusiveness specifically preserved by making any interference with such constitutionally assigned power to the executive a felony as set forth in the Logan Act. We are in the unique position of not having to determine the guilt or innocence of these 47; they have openly admitted and published evidence of such guilt by their very public act(s) in plain contravention of the language of a federal criminal statute precisely designed to cover such malfeasance.

If ever prosecuted, the guilt of these 47 is cut and dried, already openly admitted, and both the grand jury indicting and the petit jury in finding them guilty at trial would only be agreeing with such defendants’ own assessment, but we have a problem. Nobody is prosecuting. Why not? With FDIC coverage, bank robberies are federal crimes and if you or I rob a bank and are caught, I can guarantee that we will be prosecuted. The Logan Act is also a federal criminal statute and we have 47 prospective defendants who have publicly admitted that they have unconstitutionally and illegally committed a criminal act in contravention of the plain wording of this law, so where is the prosecution? Is the prosecution cowed by the political status of the prospective defendants?  Are senators immune to prosecution by virtue of their office? Why aren’t these 47 being prosecuted as they boast openly and arrogantly of their criminal act(s)?

It seems to me that this is the biggest news story since Pearl Harbor or the Cuban missile crisis, and I am hearing little to nothing from the media and zero from the Office of the Attorney General of the United States. I am no conspiracy nut but one does begin to wonder if there is not some sort of unstated understanding between and among the political class and the media and prosecutorial authority that felonies committed in certain areas will be selectively ignored, areas in which all are complicit and allowed political slack to roam irrespective of law.  Such an understanding, if any, must be narrow and limited because federal criminal statutes dealing with bank robberies and other federal crimes are being robustly enforced. I would favor repeal of the Logan Act if the fix is in between the political class, the media and prosecutorial authority if I did not believe it would bring on a tsunami of Benedict Arnolds numbering far more than 47.

However, the law is still on the books and there remains some hope that under certain circumstances it can be enforced to protect the country against seditious conduct by anyone, including senators. Perhaps our current prosecutors would have a different view on prosecuting senators if this were 1962 when Khrushchev of the old Soviet Union was building sites in Cuba for atomic-tipped missiles 90 miles from Florida and President Kennedy declared a blockade of all military shipments to Cuba while demanding that the sites be dismantled. I well recall that the world was on atomic alert but that Khrushchev agreed to dismantle the sites in return for Kennedy’s promise to lift the blockade and not pull any more Bay of Pigs-type invasions of Cuba. While admitting that Iran has neither the bomb nor a system to deliver it today, what if 47 of the then senators had written a letter to the Russian government with advice not to enter into any agreement with Kennedy because the Congress would scrap any such agreement and/or that Kennedy could not be trusted to keep his word in any event? One of the potential results of such a violation of the Logan Act by senators of that day might well have included the end of humanity, which leads me to conclude that “selective enforcement” is a policy mistake.

I think all violations of the Logan Act should be prosecuted irrespective of the identity of the prospective defendants and that a failure to do so invites further violations, some of which could result (as we saw in 1962 had the Logan Act  been violated) in unimaginable carnage and destruction. “Politics as usual” has no place in this fearsome scenario; this is survival, not food stamp and tax rate grandstanding for votes.  Prosecution policy change, anyone?  GERALD    E


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