Would alleged 3 weeks of talks between Biden and Iran violate Logan act?

Question

As per Le Figaro (a French newspaper), Biden officials have been in talks with Iran for the past 3 weeks - which means 3 weeks before inauguration.

Would that violate the Logan Act? (assuming the reporting is correct, of course, which Iran denied).

Answer 1

Allegations of violation of the Logan Act are fairly common in US political discourse, e.g.:

On November 10, Republican Senator Ted Cruz suggested that Mr Biden’s team had potentially violated the Act – comparing his behaviour to that of Mr Flynn – a theme picked up by Fox News host Sean Hannity on November 11.

And so I don't give the impression these are a new thing, here's a broader recount:

The act has been mentioned on a number of occasions during major US political scandals in the past 40 years.

In 1975, two US senators were accused of violation of the act after they travelled to Cuba for talks with communist officials.

In 1984, President Ronald Reagan argued that Rev Jesse Jackson should be prosecuted for travelling to Cuba and Nicaragua.

Most recently, in July 2016, then presidential candidate Donald Trump was accused by several US senators of breaching the law. This followed his public comments in which he appeared to have encouraged Russian spy agencies to hack his rival Hillary Clinton's emails.

However, none of the accusations led to prosecutions.

The problem is that there not being any successful convictions under that act (in the 200+ years since it's adoption) it's all down to punditry, grandstanding, and occasional legal opinion that the act may even be unconstitutional (which nobody has had a standing to test, owing to lack of convictions under this act.)

And it should be said that political opinion on the applicability of the Act can swing wildly with the circumstances, e.g.:

Yet charging Flynn under the Logan Act was never a realistic prospect. Though the Act has never been repealed, more than two centuries of enforcement opportunities have yielded only two indictments—none since 1852—and not one fully pursued prosecution. Obama administration officials privately acknowledged that securing a conviction after such a long history of disuse would be “daunting.” House Intelligence Committee Chairman Devin Nunes took umbrage at a reporter’s mere mention of Logan Act allegations: “So you want to investigate a Logan Act [violation]? You’re a Logan Act guy? It’s ridiculous. The Logan Act’s ridiculous. You guys all know that’s ridiculous.”

More to the point, accusations that the incoming administration had violated the Act before inauguration have also been fairly common:

Bill Clinton’s 1992 campaign dealt with its own Logan Act incident, when a Washingtonian with uncertain connections to Clinton allegedly asked European Community representatives to delay a final GATT accord until after the election. Two election cycles later, the Republican Party hosted a delegation from Vladimir Putin’s Unity Party at its 2000 National Convention; suspicious observers naturally assumed the worst. The pendulum swung back in 2008, when Barack Obama—then the presumptive Democratic nominee—was accused of lobbying Iraqi leaders not to finalize a partial-troop-withdrawal agreement with President Bush. [...] In a world of ordinary enforcement, the Trump administration would be beset with plausible Logan Act allegations. [...] Trump’s son-in-law, Jared Kushner, interacted with several foreign leaders before January 20, 2017. He also very likely directed Michael Flynn to seek Russian assistance in undermining the Obama administration’s stance on a U.N. Security Council resolution. [...] In the weeks after November 8, Trump spoke with Russian President Vladimir Putin about their nations’ “unsatisfactory” relations [...] allegedly applauded the Philippine President’s of drug-related assassinations in a one-on-one exchange; goaded China to keep an American underwater drone that it had seized; privately urged the Egyptian President to withdraw the U.N. Security Council resolution that landed Flynn in hot water; and encouraged Israel to “[s]tay strong” during the Obama administration’s final days.

In general, the DOJ (when pressed) has often avoided giving very specific reasons why they didn't bring such (Logan Act) charges, but there are some case when they were more explicit:

When Attorney General Kleindienst shot down a requested prosecution in 1972, he remarked that “[i]t wouldn’t be an easy case to try. The United States marshal can’t go over there and get the premier of North Vietnam to come over and tell the truth.” [...]

Obama officials shared key details of their internal deliberations with Washington Post reporters during the Flynn affair. They were daunted by the Logan Act’s history of disuse; they feared transforming Flynn into a martyr; they cited evidentiary difficulties; and they worried about overdeterring healthy transitional contacts.

And proving intent is apparently part of those evidentiary difficulties

regarding Michael Flynn’s clandestine calls with the Russian Ambassador, several Obama administration officials “did not see evidence . . . that Flynn had an ‘intent’ to convey an explicit promise to take action after the inauguration.”

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Biden's team has made more obviously explicit annoucements before innaguration on their intent to revert some Trump foreign policies, e.g. promissed to re-enter the Paris agreement, not leave the WHO etc., all of which could have influenced foreign officials. It's down to the murky wording of the Logan Act whether something made public is still "indirectly [...] intercourse" with a foreign government.

As the law paper from which I've been quoting discussed (p. 460) it's also been debated whether the "intercourse" needs to have been reciprocated in any way by the foreing counterpart, i.e. whether merely annoucing such (future) reversals publicly falls under the Act. An article in Lawfare which more extensively argues against such a broad interpreation notes:

Concededly, the first Logan Act indictment—of a Kentucky farmer named Francis Flournoy in 1803—was based on a newspaper article arguing that Western states should secede and join France, but as noted, the indictment was dropped. [...]

Thus, in our view, the 47 Republican senators who sent an open letter to Iran in 2015 asserting congressional power to block a nuclear accord did not violate the Logan Act (despite accusations) because their statement, though styled as a letter, was not part of any exchange or intercourse with a foreign government.

According to this narrow interpretation it thus crucially depends whether something is promised only in private, not having been announced in public beforehand. So you can see the rabbit hole (or the escape hatch) here: publicly announcing an intent escapes the Logan Act in this view.

So did Biden's team first publicly announce they intended to revisit or reverse any policies in re Iran? And if they did do that, was anything they conveyed in private different? Because if it wasn't, then there was no intercourse with intent to change their minds any further than it had been changed already by public announcements. You can see the evidentiary troubles here, unless you can get the foreign official(s) to say something like "I heard the public announcements, but I didn't really believe them until we had a meeting and I was reassured".

By the way, there's some news that Iran publicly rejected Biden's terms... on December 3. I'm not sure if the private negotiations continued thereafter, but this shows that negotiations by exchange of public annoucements are basically possible and circuvent the Logan Act if interpreted as only applying to private channels.

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A slightly more subtle angle was touched in an old paper on the topic of the 1920 negotiations of Harding administration regarding the League of Nations and them being defeated by vote in the Senate.

The coming of quiet to the battlefields had no parallel on the political front, and 1920 proved a record year for Logan Act episodes. In October Senator Warren G. Harding, in the midst of his presidential campaign, gave out the impression that he had been in touch with emissaries of France, who hoped that he would "lead the way to a world fraternity" in substitution for the League we had rejected. President Wilson reacted by sending a sharply worded letter of inquiry to Harding. General denials followed; there was the usual speculation in the New York Times about the Logan Act's applicability, in this case centering on the questions whether Harding's membership on the Senate Foreign Relations Committee entitled him to an exemption and whether the Senate rejection of the League Covenant made it no longer a matter of controversy.

To apply that argument to the present context, it goes like this: since Biden was president-elect from a certain point onward and he publicly had announced different policies with respect to Iran, the Trump administration policies (of "maximal pressure") were already defeated from a preannounced-point in time onward. So it cannot be said that any further actions, even by private channels, made the matter worse for the present US government (Trump's) position, unless such private actions (of Biden's team) can be shown to have encouraged additional damage to the US/Trump position, on top of what Iran already thought was going to happen during the Biden administration. You can probably see why this is hairy to argue in a court...

Answer 2

Technically speaking, he violated the Logan Act

The Logan Act (1 Stat. 613, 18 U.S.C. § 953, enacted January 30, 1799) is a United States federal law that criminalizes negotiation by unauthorized persons with foreign governments having a dispute with the United States. The intent behind the Act is to prevent unauthorized negotiations from undermining the government's position. Violation of the Logan Act is a felony.

Only two people have ever been indicted on charges of violating the Act, one in 1802 and the other in 1852. Neither was convicted of violating the Act.

The problem is that the Logan Act is never enforced. Few people are interested in negotiating with foreign governments for the US, let alone doing so on their own dime. More importantly, those foreign governments won't just negotiate with anyone. So if you're going to do this, you have to have some connection with the existing government. Jimmy Carter (39th US president) went to North Korea on his own in 1994 and negotiated a deal about nuclear weapons. Then-President Clinton accepted the deal.

So, to answer the question at hand, no, there's no practical difference between Biden and any of the other people who have violated this act in the last 150 years. Biden was acting outside official US channels to shape US policy. While it's possible Biden might get investigated, it's highly unlikely he will ever face any charges for negotiating with Iran, just as Kerry and Flynn faced no charges for their negotiations.

This answer is an adaptation of that by user Machavity to Is there a difference between Micheal Flynn's actions and John Kerry's actions, with regards to legality? used under CC-by-sa