In the world of law and diplomacy, Robert F. Turner is regarded as a heavyweight*, and he believes that Nancy Pelosi may have violated the Logan Act on her visit to Damascus.
On the Wall Street Journal website (which was just included in the free Opinionjournal section), he argues for the prosecution of Pelosi, reflecting on the discussion that occurred during the initial congressional debate on the Logan Act.
Rep. Roger Griswold of Connecticut, who proposed the legislation, claimed that the goal was, according to the Annals of Congress, “to protect the rights of women and children.”
“The purpose of punishing a crime that has the potential to undermine the government’s executive authority Specifically, he was referring to the kind of criminality that occurs as a result of the meddling of private persons in the dealings of our executive with other governments.” [….]
During the Supreme Court’s judgment in Marbury v. Madison, Chief Justice John Marshall referenced the president’s jurisdiction over the Department of State as an example of those “essential political authorities” that, since they were “entrusted to the executive,” “the executive’s decision is decisive.” And, in the historic 1936 Curtiss-Wright decision, the Supreme Court maintained that “the Senate cannot enter into the sphere of negotiation, and Congress itself is impotent to invade the field of negotiation.”
Ms. Pelosi and her Congressional delegation met with President Assad and discussed a variety of subjects, among them noting, “We came in goodwill, hope, and determination that the route to Damascus is a road to peace.” No member of Congress — from either party — has ever engaged in this type of behavior, but her position as a national leader, the circumstances of war in which she finds herself, opposition to her trip from the White House, and the nature of the regime she has chosen to approach all combine to make her behavior particularly inappropriate.
I am unable to support the course of action that has been suggested, which is the appointment of Patrick Fitzgerald as Special Prosecutor. Special Prosecutors are a defective strategy, and their job is prone to widespread exploitation and exploitation of others. Fitzgerald, in particular, has eroded my trust in his ability to be an unbiased and ethical prosecutor. Of course, if the Department of Justice initiates an inquiry, President Bush will be demonized. However, the situation seems to be straightforward, and no matter what the president does, he will always be criticized.
During the 1984-85 academic year, Professor Turner served as the acting assistant secretary of state for legislative affairs. He is also a past head of the American Bar Association’s Standing Committee on Law and National Security.
The following is an update from Greg Richards on a possible strategy to continue with a prosecution without the involvement of a Special Prosecutor:
What is the best approach to go about it?
Condi should send a letter to the Justice Department stating that Nancy has interfered with the official functions of the Department of State and with her own duties as Secretary of State and that she has done so in violation of the Logan Act and should be prosecuted.