An Open Letter to the Leaders of a Rival Government of the United States and Its Ringleader, Senator Tom Cotton:
It has come to our attention while observing your letter to the government of Iran that you may not fully understand our constitutional system. Thus, we are writing to bring to your attention two features of our Constitution -- the power to conduct foreign policy and the laws and judicial rulings which restrict your powers in this regard, and the consequences of overstepping the boundaries of your lawful powers in a democracy founded on the rule of law -- which you should seriously consider as President Obama's negotiations with Iran progress.
First, under our Constitution, the president has sole authority to negotiate with foreign governments as the representative of the United States government. There can be no rivalry with the president by other persons or institutions seeking to conduct foreign policy on their own. As the U.S. Supreme Court decided in United States v. Curtiss-Wright Export Corp. (1936):
The President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.The 47 senators who recently sent correspondence on U.S. Senate letterhead to the government of Iran with the stated purpose of opposing and seeking to thwart the president's foreign policy goals in negotiations with that country have violated the legal guidelines established by this Supreme Court ruling.
And that's not all. The Logan Act states:
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.Although no one has ever been convicted under the Logan Act, there has never before been as flagrant and brazen a violation as the recent action organized by Sen. Tom Cotton. The correspondence on U.S. Senate letterhead was sent by a minority of senators and was therefore "without authority of the United States." Its contents were "in relation to... disputes or controversies with the United States" and its purpose was "to defeat the measures of the United States," i.e. President Obama's policy goal and ongoing negotiations to reach an agreement with Iran concerning its nuclear energy program, to prevent nuclear weapons proliferation and war.
Second, our Constitutional system of government is based on democratic elections by the people to choose their representatives. The powers of the people and their elected officials have different characteristics. For example, senators are elected for 6-year terms, but the people retain their right to vote throughout their adult lives. As applied today, for instance, Sen. Tom Cotton and the other signatories of the letter to Iran might be voted out of office at the next election, based on the people's judgment that they have taken an action which violates the Constitution and laws concerning the separation of powers and appropriate conduct of foreign policy and is thus incompatible with holding political office. Furthermore, the people might petition the Senate for expulsion of such senators from office before their terms expire (the Congressional equivalent of impeachment).
What these two Constitutional provisions mean is that we will consider any correspondence with the government of Iran regarding that country's nuclear program and the U.S. president's negotiations with that government as nothing less than a gravely unethical and likely unlawful action, demanding the full and unrelenting attention of the American people and appropriate consequences. The United States Justice Department could prosecute a case against the politicians who wrote or signed such a letter; and the American people could use their voice and their vote in our democratic society to demand that such politicians lose their seats, either at the next election or through expulsion. With the stroke of a pen, Attorney General Eric Holder could authorize an investigation concerning the highly inappropriate and quite possibly illegal correspondence initiated by Sen. Tom Cotton. With the marking of a ballot, future voters could end the terms in office of those who used their office to commit high crimes and misdemeanors, such as Sen. Cotton and his allies in undermining U.S. foreign policy and the office of the President.
We hope this letter enriches your knowledge of our constitutional system and promotes mutual understanding and clarity as nuclear negotiations with Iran progress.
The American People