May 13, 2018

AN AMERICAN IN PARIS:  The Logan Act seems silly to me.  But when Trump is suspected of violating it, the FBI swings into action.  When John Kerry violates it by meeting with Iranian “diplomats” in Paris , nothing happens. (And arguably he’s made it a practice of violating it since 1970).

There is a lesson that extends far beyond the Logan Act here:  When law enforcement has a lot of discretion, it gets abused.  Sometimes this occurs because a legislature passes a statute that is intended to give law enforcement discretion.   Sometimes, on the other hand, the statute’s over-breadth isn’t obvious until well after it is passed, and prosecutorial discretion evolves from there.   And sometimes the law is arguably narrow and specific, but over time law enforcement comes to view it as unwise and hence enforces it only when it suits them for other reasons (arguably the Logan Act case).   Too much discretion leads to corruption.  And if it doesn’t ALWAYS happen, it’s close enough to always for government work.

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