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Friday, Nov. 13, 2020

Do a President-elect’s congratulatory calls from foreign leaders risk prosecution under the Logan Act?

Jacob Alabab-Moser, Gigafact Foundry
no

There is no precedent, or obvious reason, for charging a U.S. president-elect with a violation of the Logan Act, a 1799 law that governs "private" diplomacy efforts.

The law has only been used for two prosecutions since its origins, neither of which led to a conviction. The State Department has occasionally leaned on the act for disputes over passport suspensions and travel restrictions. Courts have previously suggested that the act could be unconstitutionally vague. The act was discussed in the context of President Trump's first National Security Advisor, Michael Flynn. He was prosecuted under other laws, for lying to the FBI about calls with Russian officials before assuming office, not for the calls themselves.

President-elect Joe Biden has received a number of congratulatory calls from foreign leaders, and "readouts" have been shared with the media.

This fact brief is responsive to conversations such as this one.

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