The letter (pdf) sent by 47 Republican senators to the government of Iran has raised questions of constitutionality and legality.

The letter, drafted by Sen. Tom Cotton of Arkansas, was intended to undermine negotiations between the Obama administration and Iran about its nuclear program, with the GOP senators warning Tehran that any deal it signs with President Barack Obama might not last beyond his remaining term in office.

Peter Spiro at Opinio Juris wrote that the communication by members of the legislative branch—who are supposed to defer to the executive branch on foreign policy matters—appeared to be “unprecedented.”

That view is shared by the Senate historian, Donald Ritchie. “We haven’t found a precedent,” Ritchie said, according to Politicus USA. “That doesn’t mean there isn’t a precedent. After 200 years, it’s hard to find anything that unprecedented.”

Another legal authority, Jack Goldsmith—who worked in the Department of Justice under President George W. Bush and now teaches at Harvard Law School—pointed out that the senators claimed to be schooling Iran’s leadership on “our constitutional system.” However, Goldsmith wrote, “It appears from the letter that the Senators do not understand our constitutional system or the power to make binding agreements,” pointing out that the Senate does not actually ratify treaties signed by the president, but instead provides advice and consent so that the White House can ratify such agreements.

Spiro also raised the question of whether the senators, by their action, had broken a more than 200-year-old law, the 1799 Logan Act, which says:

“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.”

Steven Vladeck at Lawfare challenged Spiro’s assertion that the letter could be used to prosecute the senators under the Logan Act. He noted any individual accused of violating the act must do so “without authority of the United States.” While members of the Senate are supposed to back off when it comes to foreign affairs deals, they can engage “in discussions with foreign officials in pursuance of their legislative duties under the Constitution,” according to a 1975 memo between the State Department and Congress, Vladeck wrote.

-Noel Brinkerhoff

To Learn More:

The Iran Letter and the Logan Act (by Steve Vladeck, Lawfare)

GOP Iran Letter Might Be Unconstitutional. Is It Also Criminal? (by Peter Spiro, Opinio Juris)

The Error in the Senators’ Letter to the Leaders of Iran (by Jack Goldsmith, Lawfare)

Politics and Tradition Collide Over Iran Nuclear Talks (by Peter Baker and Steven Elanger, New York Times)

Senate Historian Can’t Find Anything In History That Matches GOP Iran Sabotage Letter (by Jason Easley, Politicus USA)

An Open Letter to the Leaders of the Islamic Republic of Iran (pdf)