Some Thoughts on the Logan Act
It's not really originalism, but perhaps of interest: at the invitation of the Federalist Society, I contributed this short essay on the Logan Act to their blog and participated in a podcast that is available here. (18 U.S.C. §953, originally enacted in 1799 and informally called the Logan Act, prohibits unauthorized private diplomacy by U.S. citizens with foreign governments).
There are various issues relating to the Act -- some with originalist overtones and some not -- as sketched in the essay. For present purposes, I'm most interested in the question of what it means to be "without authority of the United States." The Act provides:
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.
As I put it in the essay:
The Act applies to persons who act “without authority of the United States.” That could be read to mean any persons who do not act with the approval of the President; but it could also be read to mean only persons who have no public status at all. For example, members of Congress, acting in pursuance of their legislative duties, might be thought to act with authority of the United States even when they are not acting with approval of the President. The immediate purpose of the Act in 1799 was to prevent the sort of purely private diplomacy [George] Logan [a private citizen who was the inspiration for the Act] himself engaged in, which is distinct from activities of public officials such as members of Congress.
As with members of Congress, the foregoing factors might counsel hesitancy to apply the Logan Act to the activities of presidential transition teams after a presidential election. The purpose of the transition is to smooth the way for the new administration, and in the diplomatic field that seems necessarily to involve speaking with foreign governments about matters of dispute. Indeed, this seems a vital activity to reduce uncertainty during the transition. It is likely that members of transitions teams of other incoming Presidents have routinely discussed pending disputes with foreign officials without raising Logan Act concerns. The Act’s goal of preventing private diplomacy is far removed from the context of presidential transitions, and there were no quasi-official transition teams at the time the Act was passed. Thus the history and purpose of the Act may suggest that it should not apply to transition teams. Moreover, one might see designated members of a transition team have a sort of official status, having been selected by the President-elect, who in turn has a quasi-official status as a result of the election. Indeed, the presidential transition process is formally established by law: the Presidential Transition Act of 1963, as amended, provides funding, facilities and access to government services for the transition team. Thus, although the diplomatic activities of the transition team may not have been directly authorized by the existing Executive Branch, like the activities of members of Congress they might be seen as done with “the authority of the United States” due to the transition’s quasi-official status and the longstanding purpose and practice of transitions.